Emory Law Journal

The Closed Rule
Michael Doran Professor of Law, Georgetown University Law Center. For comments and suggestions on earlier drafts, many thanks to Daryl Levinson, Alex Raskolnikov, Jim Ryan, Ethan Yale, and George Yin. Gratias ago in primis Olivia filia mea.

The closed rule constitutes a critical component of managerial power in the contemporary House of Representatives and an increasingly important element of the legislative process. Subject to approval by the full membership, the closed rule allows managers to block all amendments to a measure when bringing that measure to the floor. Despite objections from the minority, both Republicans and Democrats regularly use the closed rule when in the majority, and rank-and-file members ordinarily approve any closed rule put to a floor vote. Once rarely used, the closed rule has become managers’ preferred instrument for controlling the House floor agenda.

This Article presents the first comprehensive analysis of the closed rule in the legal literature. After situating the closed rule within its institutional and theoretical context, this Article examines the use of the closed rule by the Republican majority in the 109th Congress and the Democratic majority in the 110th Congress. The Article then undertakes both a positive and normative analysis. The positive analysis generalizes three prominent accounts of the closed rule from political theory and argues that the closed rule can more accurately be understood as a broadly managerial instrument for maintaining order on the House floor. The normative analysis identifies and discusses several undesirable effects of the closed rule—its tendency to increase legislative fragmentation and redundancy, its facilitation of third-party capture, and its weakening of bipartisan cooperation and compromise. But the normative analysis rejects claims that the closed rule is inherently undemocratic, arguing instead that the closed rule represents a deliberate, rational, and legitimate attempt by the rank and file to locate the House at the optimal point between too much managerial power and outright chaos on the floor.

In his diary entry for December 11, 1985, President Ronald Reagan recorded his frustration with the Republicans in the House of Representatives by using the coarsest language he could bring himself to put on paper. After noting the Democratic Speaker’s acid comment that the House Republicans “had ‘humiliated the man who led them to victory’ (me),” he bitterly agreed: “d—n it they had.” 1Ronald Reagan, The Reagan Diaries 376 (Douglas Brinkley ed., 2007). The bowdlerized entry is not unusual in the diaries; President Reagan apparently was not one to turn the page blue. Earlier that day, the Republicans had rebelled against the President and joined a coalition of Democrats to defeat House Resolution 336, which would have provided for consideration of the President’s tax-reform measure on the House floor. 2 The vote was 202 to 223. 131 Cong. Rec. 35,957 (1985). That outcome was remarkable. Measures such as House Resolution 336—known as “special rules” or simply “rules”—rarely fail in the House. Special rules establish the conditions for bringing controversial legislation to the House floor, and they reflect the considered judgment and determined will of House managers. In this case, the special rule also reflected President Reagan’s cooperation with the Democratic majority on tax reform, and he rightly understood defeat of the resolution as an affront to his own leadership. 3 After the vote on the resolution, the Speaker reportedly said to an aide that the defeat made the President “a lame duck on the floor of the House.” Jeffrey H. Birnbaum & Alan S. Murray, Showdown at Gucci Gulch: Lawmakers, Lobbyists, and the Unlikely Triumph of Tax Reform 165 (1987). But the President’s setback did not endure; during its next session, Congress passed the tax-reform measure. See Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (codified as amended in scattered sections of 16 U.S.C., 19 U.S.C., 25 U.S.C., 26 U.S.C., 28 U.S.C., 29 U.S.C., 42 U.S.C., 46 U.S.C., and 49 U.S.C.). The glow of that victory did not endure either. Just over two weeks after he signed the tax-reform measure, the press broke what President Reagan, again writing in his diary, at first called “a wild story” about his Administration selling arms to Iran in exchange for hostages held in Lebanon. Reagan, supra note 1, at 448.

House Resolution 336 set out a “modified closed rule”—that is, a special rule allowing “a very limited number of amendments” 4 These remarks are the characterization of House Resolution 336 made by its sponsor. 131 Cong. Rec. 35,945 (1985) (remarks of Rep. Bonior).—for what would be the most extensive reform of the nation’s tax laws in three decades. During debate on the resolution, members objected that the special rule allowed only three floor amendments—two “perfecting amendments” offered by Democrats and one “amendment in the nature of a substitute” offered by Republicans. 5See, e.g., 131 Cong. Rec. 35,948 (1985) (remarks of Rep. Lott and Rep. Kemp); id. at 35,949 (remarks of Rep. Wolf); id. at 35,951 (remarks of Rep. Taylor); id. at 35,952 (remarks of Rep. Miller and Rep. Traficant); id. at 35,954 (remarks of Rep. Green). In effect, House Resolution 336 provided a carefully structured and deliberately controlled set of choices for the House floor: members could accept the tax-reform measure as approved by the House Committee on Ways and Means; 6 House Resolution 336 also included a “self-executing” provision that would have treated a particular amendment as though it had been adopted. That amendment was itself controversial. See Birnbaum & Murray, supra note 3, at 162. members could accept the Ways and Means measure as modified by either or both of the Democratic amendments; members could accept the Republican substitute measure; 7 House Resolution 336 also allowed a specific perfecting amendment to the Republican substitute measure. 131 Cong. Rec. 35,944 (1985). or members could retain the status quo by rejecting both the Ways and Means measure and the Republican substitute measure. Under the resolution, rank-and-file members could not offer any amendments beyond those that the resolution specifically permitted. 8 In addition to the specific amendments that it allowed, House Resolution 336 made in order any “amendments to the bill recommended by the Committee on Ways and Means,” thereby allowing the chair of that committee to propose further changes on the floor. Id. Passage of House Resolution 336 by the full House generally would have “closed” the tax-reform measure to amendment on the floor. 9 President Reagan certainly knew what was at stake with House Resolution 336. Four years earlier, House Republicans had joined a coalition of House Democrats to vote down a special rule that likely would have prevented passage of a tax measure that had been the highest domestic-policy priority of President Reagan’s first year in office. R. Douglas Arnold, The Logic of Congressional Action 180–81 (1990); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives 117–18 (2005) [hereinafter Cox & McCubbins, Setting the Agenda].

The defeat of House Resolution 336 was exceptional, but the intended effect of the rule—to define the floor choices available to members—was entirely familiar. For decades, the House Committee on Rules has reported special rules that, once adopted by the full House, control the amendment process on the floor. At one extreme, an “open rule” permits any floor amendment that satisfies the standing rules and precedents of the House. At the other extreme, a “closed rule” prohibits all floor amendments. Special rules falling between these extremes—often referred to as “structured rules,” “modified open rules,” or “modified closed rules”—allow certain amendments but disallow all others.

The closed rule plays a critical role in the contemporary House. For much of the twentieth century, open rules were the norm, and House managers reserved closed rules primarily for tax legislation. But open rules, with their potential for disorder on the House floor, generally have fallen into disuse for consideration of controversial measures. House managers now bring most such measures to the floor under a closed rule or, failing that, under a special rule that so tightly limits amending activity as to have nearly the same effect as a closed rule. 10See infra Part II. Each closed rule must be put to a vote of the full House, but, with rare exceptions (such as the vote that galled President Reagan), the floor ratifies the closed rules proposed by managers. The closed rule now constitutes one of the most important parts of the legislative process.

Use of the closed rule elicits strong reactions from members of the minority. When Republicans introduced the first special rule in 1883, Democrats called it “a monstrous proposition,” a “fraud,” and a “revolutionary” move. 11Comm. on Rules, 97th Cong., A History of the Committee on Rules 63 (Comm. Print 1983) [hereinafter Rules Committee History]. After the legislative reforms of the 1970s, the majority Democrats turned to closed and modified closed rules to manage an increasingly unruly House floor, and the minority Republicans denounced the development as undemocratic, 12See 134 Cong. Rec. 12,179–80 (1988) (remarks of Rep. Lott, arguing that closed and modified closed rules exposed the minority “to the caprice of the majority leadership”). “the most serious and scandalous blow struck against democratic procedures in the House to date,” 13 Robert E. Bauman, Majority Tyranny in the House, in View from the Capitol Dome (Looking Right) 11 (John H. Rousselot & Richard T. Schulze eds., 1980). and an occasion to “‘mourn . . . the freedoms we have lost.’” 14 Stanley Bach, The Structure of Choice in the House of Representatives: The Impact of Complex Special Rules, 18 Harv. J. on Legis. 553, 580 n.72 (1981) (quoting 123 Cong. Rec. 5888 (1977) (remarks of Rep. Frenzel)). When Republicans held the majority in the 1990s and the 2000s, the minority Democrats complained that closed and modified closed rules, which they had been using with increasing frequency until they lost control of the House in 1995, were “an affront to the democratic process” and an “attack[] on democracy.” 15 The remarks, quoted in Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress 171 (2007) [hereinafter Sinclair, Unorthodox Lawmaking] (internal quotation marks omitted), were made by Representative Slaughter of New York in 2003. Representative Slaughter apparently revised her views several years later. As chair of the Rules Committee in the 110th Congress, she was responsible for bringing seventy-six closed rules to the floor. See infra Part II.A. They charged that closed rules under Republican hegemony had led to “democracy’s utter collapse,” 16H. Rules Comm. Minority Office, 108th Cong., Broken Promises: The Death of Deliberative Democracy 15 (2005), available at http://www.citizen.org/documents/Broken_Promises.pdf. and they labeled the closed rule an “outrageous tactic[] that trample[s] the rights of the minority and rig[s] the rules of . . . debate.” 17Sinclair, Unorthodox Lawmaking, supra note 15, at 189 (quoting Rep. Hoyer). Although they too had used the closed rule regularly throughout their twelve years in the majority, the Republicans renewed their own attacks on the closed rule—calling it “offensive to the spirit of representative democracy” 18 154 Cong. Rec. 10,044 (2008) (remarks of Rep. Diaz-Balart).—once the Democrats regained control of the House in 2007.

Despite its increasingly important role in the legislative process and extensive study by political theorists and congressional scholars, the closed rule has received very little attention in the legal academic literature. 19 References in the legal literature to the closed rule normally are made by way of background to specific federal statutes. See, e.g., Michael Montaño, Note, Who May Be Tried Under the Military Commissions Act of 2006?, 61 Stan. L. Rev. 1281, 1322 (2009). This Article examines the closed rule in the contemporary House and analyzes its implications for the allocation of legislative power, the development of substantive policy, and the scope and character of representative democracy. As demonstrated here, the closed rule represents a rational decision by the rank and file to give managers broad discretionary authority over the House floor agenda. That has important consequences for the House, for federal statutory law, and for government.

This Article proceeds in three parts. Part I situates the closed rule within its relevant institutional and theoretical context. It shows, first, where the closed rule fits within the broader structure of House governance and procedure and, second, how the closed rule serves the function of agenda control, thereby contributing to the stability of legislative outcomes. Part II examines in detail how the closed rule was used in two consecutive Congresses: the 109th Congress, which met from 2005 until 2007 under Republican control; and the 110th Congress, which met from 2007 until 2009 under Democratic control. It directly challenges two claims made by political scientists: that the closed rule is infrequently used and that a recent increase in the use of the closed rule is specific to Republican control of the House. Part II shows that there is currently no appreciable difference between the use of the closed rule by a Republican majority and its use by a Democratic majority. At this point, House managers from both parties employ the closed rule for approximately half of all controversial measures that they bring to the full membership.

Part III undertakes a broader positive and normative examination of the closed rule. Political scientists locate the closed rule in three different theories of legislative organization: distributive, informational, and partisan. After reviewing how the experience with the closed rule in the 109th and 110th Congresses suggests possible qualifications to those explanations, Part III incorporates and generalizes the explanations into an account of the closed rule as broadly managerial. Part III then turns to a normative evaluation of whether the closed rule, so understood, should be reformed. It argues that the closed rule has certain undesirable effects on substantive policy—that it leads to legislative fragmentation and redundancy, facilitates capture by interest groups and agents of the Executive Branch, and undermines bipartisan cooperation and compromise. But Part III also rejects the more serious criticism that the closed rule is inherently undemocratic. Instead, it argues that the closed rule represents a deliberate, rational, and legitimate effort by the rank and file to locate the House at the optimal point between too much managerial control and outright chaos on the floor. Whether or not the rank and file are successful in this effort, the closed rule is not inherently less democratic than its polar opposite, the open rule.

I. Institutional and Theoretical Context

The significance of the closed rule derives from the operation of basic House floor procedures and the importance of agenda control in legislative voting. This Part sets out the institutional and theoretical background for understanding the use of the closed rule in the 109th and 110th Congresses and for assessing the broader implications of the closed rule for law and government.

A. Overview of House Procedures

The Constitution provides little detail about the internal structure of the House. After vesting “[a]ll legislative Powers” in the House and the Senate, the Constitution sets the “Quorum to do Business” in the House at a simple majority of members and requires that the House choose a “Speaker and other Officers,” “keep a Journal of its Proceedings,” and record “the Yeas and Nays . . . on any question . . . at the Desire of one fifth of those Present.” 20U.S. Const. art. I, §§ 1–2, 5. Beyond these and similar minima, the Constitution simply states that the House “may determine the Rules of its Proceedings.” 21U.S. Const. art. I, § 5.

The most salient “Rules of . . . Proceedings” are published at the beginning of each Congress as “standing rules” of the House. 22 The standing rules, which set out general House procedures, are distinct from special rules, which allow or facilitate floor consideration for individual measures. See Comm. on Rules, U.S. H.R., Floor Procedure in the U.S. House of Representatives (1999) [hereinafter Floor Procedure], available at http://rules.house.gov/Archives/floor_man.htm. The 111th Congress has adopted the most recent version of the standing rules. Office of the Clerk of the U.S. H.R., Rules of the House of Representatives, One Hundred Eleventh Congress (2009) [hereinafter Standing Rules]. The standing rules are reproduced in the “House Manual,” which also includes the Constitution and Jefferson’s Manual of Parliamentary Practice. Judy Schneider, Cong. Research Serv., Order Code 98-262 GOV, House Rules Manual: Summary of Contents (2007), available at http://www.rules.house.gov/archives/98-262.pdf. The standing rules describe the powers and duties of the speaker and other officers, designate committees and allocate jurisdiction among them, establish a regular order of business on the floor and procedures for overriding the regular order, set out floor debate and voting rules, and prescribe ethical standards for House members. 23Standing Rules, supra note 22, rs. I–II, X–XXI, XXIII–XXVII. The standing rules are supplemented by recorded precedents of parliamentarian decisions and by unwritten institutional norms. 24Walter J. Oleszek, Congressional Procedures and the Policy Process 6–7 (7th ed. 2007). For certain legislative matters (such as the budget), federal statutes provide additional rules of proceeding. Id. at 7.

Under these rules, precedents, and norms, the House organizes itself into a hierarchical structure that distinguishes between members serving as managers and members constituting the rank and file. Managers—comprising the leadership of the majority party 25 This includes the speaker, the majority leader, the majority whip, and the chair of the Rules Committee (among others). and the committee chairs 26 The reference to “committee chairs” should be understood to include subcommittee chairs. In both cases, a chair of a committee or a subcommittee of jurisdiction should be considered a manager only for measures that fall within that committee’s or subcommittee’s jurisdiction. For example, the chair of the Committee on Agriculture would be a manager as to a farm measure but not as to a defense measure.—exercise extensive control over the legislative process. 27 Although there is a parallel structure on the minority side—a minority leader, a minority whip, and ranking members of committees—the House’s strong commitment to majority rule generally is not consistent with considering those members to be “managers” as that term is used in this Article. They determine what policy issues the House will address, the content of specific measures reported out of committee, when measures will be brought to the floor, and the conditions for floor debate, amendment, and voting. 28See generally Sinclair, Unorthodox Lawmaking, supra note 15. Although it is possible for legislation to advance without the approval of House managers, that outcome is not common. Managers cannot always secure passage of measures that they support, but they can almost always block passage of measures that they oppose. 29 Since initiation of the discharge petition in 1931, only three measures discharged by petition from a House committee of jurisdiction have become law. Richard S. Beth, Cong. Research Serv., Order Code 97-552 GOV, The Discharge Rule in the House: Principal Features and Uses 4–5 (2003); Oleszek, supra note 24, at 144.

Managers hold their positions as agents of the full membership. 30Barbara Sinclair, Legislators, Leaders, and Lawmaking: The U.S. House of Representatives in the Postreform Era 8–18 (1995) [hereinafter Sinclair, Legislators]; see also Steven S. Smith, Call to Order: Floor Politics in the House and Senate 168, 234 (1989); Morris P. Fiorina & Kenneth A. Shepsle, Formal Theories of Leadership: Agents, Agenda Setters, and Entrepreneurs, in Leadership and Politics: New Perspectives in Political Science 17, 20–21 (Bryan D. Jones ed., 1989). The rank and file elect the managers and reserve authority to remove them, 31 U.S. Const. art. I, § 2; Standing Rules, supra note 22, r. X; Oleszek, supra note 24, at 21, 92; Sinclair, Legislators, supra note 30, at 64–67. and the rank and file can change managers’ powers and duties by amending the standing rules. 32 U.S. Const. art. I, § 5. Such events are rare but momentous: in the “Cannon Revolt” of 1910, progressive Republicans joined Democrats to impose sharp limits on the powers of the speaker; 33 Lawrence C. Dodd & Bruce I. Oppenheimer, The Politics of the Contemporary House: From Gingrich to Pelosi, in Congress Reconsidered 23, 24 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2005). in the early 1970s, the House made significant organizational changes to shift power from committee chairs to leadership and the rank and file; 34Sinclair, Unorthodox Lawmaking, supra note 15, at 110–11; Smith, supra note 30, at 24–35. and, in 1998, the Republican majority effectively deposed Speaker Newt Gingrich. 35 Dodd & Oppenheimer, supra note 33, at 28. In the ordinary course, then, the rank and file delegate broad control over the legislative process to managers, but the rank and file retain the power to discipline managers through reversal of their decisions, contraction of their authority, or removal from their positions.

Central to House management is the regulation of debate, amendment, and voting on the floor. The 435 members of the House introduce thousands of bills and resolutions during each Congress, 36Oleszek, supra note 24, at 79. and granting every member unrestricted authority to call up any measure at any time would push the House into chaos. 37Smith, supra note 30, at 253. To avoid that outcome, the standing rules initially assign each measure to one or more committees 38Standing Rules, supra note 22, rs. X & XII. and prescribe limited procedures for bringing a measure from committee to the floor. 39Id. rs. XIII−XVI. These two steps effectively block many measures from consideration by the full House—committees refuse or fail to report most measures referred to them, and leadership may decline to call up reported measures on the floor. 40Oleszek, supra note 24, at 90–91. In both cases, however, the measure is subject to discharge by petition of a majority of the full membership. Standing Rules, supra note 22, r. XV; Oleszek, supra note 24, at 143–46. See generally Beth, supra note 29.

A measure approved by committee and by leadership can be brought to the floor under one of four main procedures: the regular order of business, unanimous consent, suspension of the rules, or a special rule. 41Wm. Holmes Brown & Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures of the House 857 (2003) [hereinafter House Practice]; see also Methods of Obtaining House Floor Consideration, Parliamentary Outreach Program, Comm. on Rules, U.S. H.R., (last visited Mar. 2, 2010) (explaining procedures for bringing measures to the House floor). There are separate procedures for bringing discharged measures and private measures to the floor. Id. For the regular order of business, the standing rules distinguish between privileged and non-privileged measures. 42Standing Rules, supra note 22, rs. XIII−XIV. Rule XIV sets forth the daily order of business, and Rule XIII grants certain committees privilege to report certain measures. A measure called up through the regular order generally is debatable only for one hour and is subject to amendment only by the member who calls up the measure. Christopher M. Davis, Cong. Research Serv., Order Code 95-563, The Legislative Process on the House Floor: An Introduction 4 (2006). The standing rules require, however, that most tax or spending measures first be considered in the Committee of the Whole House on the state of the Union (the “Committee of the Whole”). Standing Rules, supra note 22, r. XVIII. The Committee of the Whole—which also considers other measures, either by motion or by special rule—comprises the full membership of the House but allows for more flexible debate and amendment procedures than does the House. Oleszek, supra note 24, at 156–58. Any measure passed in the Committee of the Whole must pass in the House as well. Id. at 180; see also Davis, supra, at 6. For background on the Committee of the Whole, see Stanley Bach, The Amending Process in Congress 23–40 (2003). Privileged measures (such as appropriations measures) can be called up on the floor at any time. 43Standing Rules, supra note 22, r. XIII, XXII; James V. Saturno, Cong. Research Serv., Order Code RS20067, How Measures Are Brought to the House Floor: A Brief Introduction 2−3 (2005); Oleszek, supra note 24, at 122. Non-privileged measures can be called up by chronological position on one of the House calendars or under a weekly “call of committees.” 44Standing Rules, supra note 22, rs. XIV−XV; Saturno, supra note 43, at 4; Oleszek, supra note 24, at 115, 125−26, 146; Smith, supra note 30, at 253. But the House normally does not use the regular order. 45Saturno, supra note 43, at 4; Stanley Bach, Cong. Research Serv., Special Rules in the House of Representatives 1 (1991); Oleszek, supra note 24, at 146. The unanimous-consent procedure is practicable only for non-controversial measures because, as the term implies, a single member can defeat the procedure. 46Elizabeth Rybicki & Stanley Bach, Cong. Research Serv., Order Code 97-236 GOV, Floor Procedure in the House of Representatives: A Brief Overview 2 (2003); Oleszek, supra note 24, at 116. Suspension of the rules allows for expeditious consideration. A measure called up under the suspension procedure is debatable for only forty minutes, is not subject to amendment (other than by the member who calls it up), and requires a two-thirds vote for passage. 47Standing Rules, supra note 22, r. XV; Saturno, supra note 43, at 4−5; Oleszek, supra note 24, at 118. See generally Elizabeth Rybicki, Cong. Research Serv., Order Code 98-314, Suspension of the Rules in the House: Principal Features (2006) (explaining suspension procedure); Thomas P. Carr, Cong. Research Serv., Order Code RL 32474, Suspension of the Rules in the House of Representatives (2005) (same). Because a measure brought up under the suspension procedure cannot be amended other than by the member making the suspension motion, the procedure effectively acts as a closed rule with a supermajority requirement. Keith Krehbiel, Information and Legislative Organization 155 (1991) [hereinafter Krehbiel, Information]. Although the House passes many measures under the suspension procedure, the supermajority requirement limits its usefulness. 48Oleszek, supra note 24, at 118; Sinclair, Unorthodox Lawmaking, supra note 15, at 23−25. By default, then, non-privileged controversial measures—those measures that lack privileged status under the standing rules and that do not have unanimous or supermajority support—require a special rule for successful floor consideration. 49Bach, supra note 45, at viii; Oleszek, supra note 24, at 123; Smith, supra note 30, at 259.

B. Special Rules and the Rules Committee

This need for a special rule allows the Rules Committee, acting on behalf of leadership, to control floor access when measures are too divisive for the unanimous-consent and suspension procedures. 50 James A. Robinson, The House Rules Committee 1–2 (1963). The Rules Committee stands between the committees of jurisdiction and the floor. By reporting a special rule, the Rules Committee can make a non-privileged measure “in order” for floor consideration 51See generally Richard S. Beth, Cong. Research Serv., Order Code 98-354 GOV, How Special Rules Regulate Calling up Measures for Consideration in the House (2005). and can waive points of order that otherwise might be raised on the floor against a measure, whether or not the measure is privileged. 52See generally James V. Saturno, Cong. Research Serv., Order Code 98-433 GOV, Special Rules and Waivers of House Rules (2007). A special rule can also allow or disallow any floor amendment to any measure. 53See generally James V. Saturno, Cong. Research Serv., Order Code 98-612 GOV, Special Rules and Options for Regulating the Amending Process (2006). For these reasons, the special rule is often the procedure of choice—and, sometimes, of necessity—for bringing a privileged or non-privileged measure to the full House.

In the past, the Rules Committee regularly used its gatekeeper role to block measures without regard to the preferences of leadership or the rank and file. 54Robinson, supra note 50, at 23−42; Sinclair, Legislators, supra note 30, at 26. For an account of how the chair of the Rules Committee obstructed floor consideration of the Civil Rights Act of 1964, see Nicole L. Guéron, Note, An Idea Whose Time Has Come: A Comparative Procedural History of the Civil Rights Acts of 1960, 1964, and 1991, 104 Yale L.J. 1201, 1229 (1995). That practice was most prominent during the “committee era” that ran from 1910 through the early 1970s, although the rank and file began to curb the practice as early as 1961. 55Rules Committee History, supra note 11, at 187–95; Robinson, supra note 50, at 71−80. Over the last three decades, however, the Rules Committee has fallen under the firm control of leadership, and leadership maintains that control through the speaker’s power to appoint and remove the majority-party members of the committee. 56See Oleszek, supra note 24, at 125; Robinson, supra note 50, at 78; Sinclair, Legislators, supra note 30, at 71, 314; Bruce I. Oppenheimer, The Rules Committee: New Arm of Leadership in a Decentralized House, in Congress Reconsidered 96, 96−105 (1977); Steven S. Smith & Gerald Gamm, The Dynamics of Party Government in Congress, in Congress Reconsidered, supra note 33, at 141. Leadership’s control may have begun to erode the committee’s institutional prestige. See James M. Curry & Jill L. Gloekler, I’m Your Puppet: The Changing Role of the House Committee on Rules (APSA Toronto Meeting Paper, Working Paper, 2009), available at http://www.bsos.umd.edu/gvpt/jcurry/docs/curry_gloekler_rules.pdf. Thus, in the contemporary House, the special rule enables leadership, acting through the Rules Committee, to control when and how important measures reach the floor.

As a formal matter, the chair of a committee that has reported a measure ordinarily requests that the Rules Committee issue a special rule for the measure. 57Bach, supra note 45, at 139−40; Rules Committee History, supra note 11, at 10; House Practice, supra note 41, at 859; Sinclair, Legislators, supra note 30, at 150. The Rules Committee then reviews submissions and testimony from House members (including those not serving on the reporting committee) concerning what type of special rule members consider appropriate and the amendments members want to offer on the floor. 58See generally James V. Saturno, Cong. Research Serv., Order Code 98-313 GOV, House Rules Committee Hearings on Special Rules (2006); see also Floor Procedure, supra note 22. In close consultation with leadership, the Rules Committee reports (or decides not to report) a resolution setting forth the special rule. 59Floor Procedure, supra note 22. This resolution is privileged for floor consideration and generally cannot be amended. 60Bach, supra note 45, at 143−44; House Practice, supra note 41, at 861−64. However, if the House rejects the motion for the previous question (that is, the motion to proceed to a vote on final passage) for a special rule, control over the rule passes to a member who opposed the motion. Bach, supra note 45, at 40, 144; House Practice, supra note 41, at 865. Upon passage of the resolution by a majority vote, the special rule controls the floor procedure for the underlying measure. 61Floor Procedure, supra note 22. The House almost always approves the special rules put before it. 62Bach, supra note 45, at 2−3; Oleszek, supra note 24, at 142; Sinclair, Unorthodox Lawmaking, supra note 15, at 36−37.

House Resolution 587 in the 111th Congress, which set out the special rule for the June 2009 floor consideration of the “cap-and-trade” energy legislation, provides a useful example. 63 H.R. Res. 587, 111th Cong. (2009). Appendix 1 sets forth the text of the resolution. The resolution made consideration of the otherwise non-privileged measure in order, 64 Specifically, House Resolution 587 provides that “upon the adoption of this resolution it shall be in order to consider in the House the bill (H.R. 2454) to create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean economy.” Id. set time limits for floor debate and designated the “floor managers” to control the debate, 65 House Resolution 587 allows “three hours of debate, with two and one-half hours equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce and 30 minutes equally divided and controlled by the chair and ranking minority member of the Committee on Ways and Means.” Id. and generally waived possible points of order that opponents might have raised to block the measure. 66 House Resolution 587 waives “[a]ll points of order against consideration of the bill . . . except those arising under clause 9 [requiring the disclosure of earmarks] or 10 [requiring that any measure increasing the federal deficit be offset by a tax increase or spending decrease] of rule XXI.” Id. The resolution also included a “self-executing” provision that replaced the cap-and-trade measure reported by the committee of jurisdiction with a substitute measure, as further modified by amendments set out in the resolution. 67 House Resolution 587 provides that “[i]n lieu of the amendment recommended by the Committee on Energy and Commerce now printed in the bill, an amendment in the nature of a substitute consisting of the text of H.R. 2998, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted.” Id. As special rules commonly do, House Resolution 587 also treats the “previous question . . . as ordered on the bill,” eliminating the need to move for a vote on final passage for the underlying measure. Id. For a discussion of “self-executing rules,” see Oleszek, supra note 24, at 137−38. Finally, the resolution tightly controlled the amending process on the floor by allowing only one member to offer only one amendment, thereby disallowing more than two hundred other amendments that members wanted to offer. 68 House Resolution 587 makes in order (in addition to the amendments treated as adopted by the resolution) a “further amendment in the nature of a substitute printed in part B of the report of the Committee on Rules, if offered by Representative Forbes of Virginia or his designee, which shall be . . . separately debatable for 30 minutes equally divided and controlled by the proponent and an opponent.” H.R. Res. 587.

Special rules provide leadership with a wide range of possibilities for controlling the amendment process on the floor. The most permissive special rule is the open rule, which allows any amendment that satisfies the precedents and the standing rules of the House. 69Saturno, supra note 53, at 1; Bach, supra note 45, at 9−17. When it provides an open rule, leadership effectively disclaims tight control over floor amendments. 70 There are variants on the open rule, including one that requires amendments to be preprinted in the Congressional Record. House Practice, supra note 41, at 868. That variant generally is justified as giving members an opportunity to study amendments before they are offered. For that reason, however, it also eliminates the tactical advantage of offering a surprise amendment. By contrast, the closed rule maximizes leadership control over the amendment process; a completely closed rule precludes all floor amendments. 71Saturno, supra note 53, at 2; Bach, supra note 45, at 39−46. A closed rule nonetheless usually allows the minority to offer one amendment by way of a motion to recommit the measure with instructions. Such a motion, if successful, sends the underlying measure back to the substantive committee and directs the committee to return the measure immediately to the floor with whatever changes are set forth in the motion to recommit. In short, the motion to recommit with instructions has the effect of amending the underlying measure. The standing rules do not allow the Rules Committee to report a special rule that prevents the minority from offering a motion to recommit. Standing Rules, supra note 22, r. XIII, cl. 6(c); Saturno, supra note 53, at 2; House Practice, supra note 41, at 858. Between these extremes are special rules that permit certain amendments but prohibit others. In the past, the Rules Committee often designated these as “modified open rules” or “modified closed rules,” depending on whether the committee judged the rule to be more open than closed or more closed than open. 72Davis, supra note 42, at 9; Saturno, supra note 53, at 1−2. For example, House Resolution 336, the special rule on which the Republicans in the House rebelled against President Reagan, allowed only three floor amendments and was designated by the Rules Committee as a “modified closed rule.” H.R. Res. 336, 99th Cong. (1985); see also supra note 4. In recent years, the Rules Committee generally has preferred the bland and uninformative term “structured rules” for special rules that are not completely closed. 73Oleszek, supra note 24, at 133. Both academic and non-academic commentators often use the term “restrictive rule” to refer to a special rule that is not labeled as either open or closed. See, e.g., Bach, supra note 45, at 6, 47−55. But that term is not fully satisfactory. In certain cases, a non-open rule may allow substantially all the amendments that members have submitted to the Rules Committee. A rule with such minimal limitations on floor amendments should not be regarded as restrictive. Additionally, a rule that commentators might designate as restrictive could allow so few amendments that it really should be regarded as a closed rule. And even a restrictive rule allowing votes on several versions of a measure might effectively constrain floor outcomes through a “king-of-the-hill” or “queen-of-the-hill” voting procedure. Those procedures typically ensure that the version preferred by the Rules Committee will prevail. See Bach, supra note 45, at 57−70; Oleszek, supra note 24, at 138−40.

However, many special rules designated as “structured” are so restrictive that they effectively close off the floor amendment process. The special rule for the cap-and-trade measure, although called a “structured rule” by the Rules Committee, allowed only one out of more than two hundred amendments submitted to the committee, 74Summary of Amendments Submitted to the Rules Committee for H.R. 2454—American Clean Energy and Security Act of 2009, Comm. on Rules, U.S. H.R. (June 25, 2009, 4:58 PM) http://www.rules.house.gov/amendment_details.aspx?NewsID=4341. and that one amendment proposed a weak substitute measure that lacked formal support even among the senior members of the minority. 75 Rep. Forbes of Virginia offered an amendment to The American Clean Energy and Security Act of 2009, H.R. 2454, 155 Cong. Rec. H7672–7680 (daily ed. June 26, 2009), which was defeated by a roll call vote of 172 to 256, with 5 representatives not voting. . at H7685. In effect, House managers handpicked the amendment for floor consideration so that the minority could offer an alternative measure posing no genuine risk of adoption by the full House. A special rule that so sharply limits the amendment process is a closed rule in all but name. To account accurately, then, for special rules during the 109th and 110th Congresses, this Article adopts the following classifications: “open rule” designates a rule that allows all floor amendments without any preselection by the Rules Committee; “closed rule” designates a special rule that allows no floor amendments; “effectively closed rule” designates a special rule that allows substantially no floor amendments; and “limiting rule” designates any other special rule, whether it leans more toward the open side or more toward the closed side. 76 More specifically, a rule is designated as “effectively closed” if it both allows three or fewer amendments and disallows more than half the amendments submitted to the Rules Committee. Any rule (other than a closed rule or an effectively closed rule) will be designated as “limiting” if it preselects the amendments that may be offered on the floor. Thus, a rule may be designated as “limiting” even if it allows all or substantially all the amendments submitted to the Rules Committee. In such cases, the Rules Committee exercises agenda control by preselecting the amendments that may be offered and by precluding an open amendment process. Finally, a rule will be designated as “open” even if it requires that amendments be preprinted in the Congressional Record (or if it gives priority to such amendments).

Before the 1980s, the Rules Committee issued very few closed rules during each Congress. 77Robinson, supra note 50 at 44−45. Members of both parties generally accepted that tax measures would come to the floor under closed rules because it was thought that difficult compromises made in the Ways and Means Committee might easily unravel under an open amendment process. 78 John C. Blydenburgh, The Closed Rule and the Paradox of Voting, 33 J. Pol. 57, 57–58 (1971); see also Rules Committee History, supra note 11, at 14; Robinson, supra note 50, at 44–45. President Herbert Hoover blamed the defeat of a measure setting out his 1932 tax proposals on Speaker John Nance Garner’s decision to bring the measure to the floor under an open rule. Herbert Hoover, The Memoirs of Herbert Hoover: The Great Depression 137–38, 160 (1952). The Rules Committee also protected many of the measures passed during the first 100 days of President Franklin Roosevelt’s first term with closed rules. 79Rules Committee History, supra note 11, at 126–27. But those and similar uses of the closed rule were considered exceptional; for the most part, the House historically maintained an open process for floor amendments. 80Bach, supra note 14, at 567. In the last three decades, however, the majority in the House has greatly increased its use of the closed rule, despite protests from the minority. 81Oleszek, supra note 24, at 129; Sinclair, Unorthodox Lawmaking, supra note 15, at 26; Smith, supra note 30, at 74−75, 188−90; see also infra Part II. And, during periods when the majority has set it aside, the minority has effectively justified the majority’s reliance on the closed rule by offering numerous floor amendments intended to delay or prevent passage of the majority’s legislative program. 82Sinclair, Unorthodox Lawmaking, supra note 15, at 29, 39, 112.

The immediate practical effect of the closed rule is straightforward: a measure called up under a closed rule is put to a simple up-or-down vote before the full House. Thus, the closed rule allows House managers first to determine the exact terms of the measure and then to pair the measure against the status quo. The closed rule bars competing versions of the measure, including versions that a majority of the rank and file might prefer to the version called up by managers. In short, the closed rule constitutes an important tool for House managers to set the floor agenda.

C. Agenda Control Under the Closed Rule

Political theory has long recognized the possibility that an agenda setter may influence—and, in certain cases, control—voting outcomes. 83William H. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice 137–39, 169–95, 200, 237 (1982). More generally, legislative process helps to determine legislative outcomes. Krehbiel, Information, supra note 47, at 1–2, 151; see also Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547–48 (1983); Charles J. Finocchiaro & David W. Rohde, War for the Floor: Partisan Theory and Agenda Control in the U.S. House of Representatives, 33 Leg. Stud. Q. 35, 37 (2008). The agenda setter for a committee or a legislature may determine which policy options will be put to a vote, which options will be excluded from consideration, the order of voting on different options, the time allowed for consideration of each option, and whether other committee members or legislators can propose amendments to the options prior to voting. House managers, acting as agents of the rank and file, exercise this agenda-setting role through their control over the content of measures reported by the committees of jurisdiction and their control over the special rules under which measures reach the floor. The closed rule represents the most ambitious reach of managerial agenda setting and the point at which control over the floor agenda most closely approaches control over voting outcomes.

Agenda control in the House can be separated into two dimensions: spatial agenda control (a topic much discussed by political theory) and temporal agenda control (a topic less discussed by political theory). House managers control the spatial agenda by determining the content of measures and amendments brought to the floor and by deciding voting order and amendment procedures. They control the temporal agenda by regulating how many amendments may be offered and the time available for debate on those amendments. In both cases, the ability to control floor activity encourages managers to make heavy use of the closed rule.

Managers setting the spatial agenda can facilitate passage of their preferred measures over competing measures, even those that stand closer to the floor median. To see this possibility in a simple case, consider the familiar problem of the Condorcet paradox, which demonstrates that social preferences may be intransitive even though individual preferences are transitive. 84Peter C. Ordeshook, A Political Theory Primer 24−25 (1992). Assume, for example, that the members—A, B, and C—of a three-member committee have preferences among three competing policy options—x, y, and z—as shown below (in declining order). 85 These individual preferences are all assumed to be transitive, such that member A prefers option x to option z, member B prefers option z to option y, and member C prefers option y to option x.

Table 1

Ordinal Preferences of Members

 

 

Member A

 

 

Member B

 

Member C

 

x

 

z

 

y

 

y

 

x

 

z

 

z

 

y

 

x

 

The principle of straightforward majority rule among paired options, if implemented without restriction, will prevent the committee from selecting any one of the three options. In pairwise voting between option x and option y, option x would win (members A and B would vote for it). But in pairwise voting between option x and option z, option z would win (members B and C would vote for it), and in pairwise voting between option y and option z, option y would win (members A and C would vote for it). Thus, whatever option wins in one round of voting will be defeated by a different option in a subsequent round of voting, and the committee will cycle indefinitely without settling on a winner. 86 This assumes that the members vote sincerely.

That indeterminate outcome is not inevitable. A notable, although uncommon, exception occurs when the options include a Condorcet winner—that is, an option that prevails over every other option in pairwise majority voting. 87Ordeshook, supra note 84, at 80–81. The committee or legislature will always select the Condorcet winner if the Condorcet winner is not excluded from the voting process. 88Id. at 81. However, Arrow’s Theorem indicates that, in the absence of a Condorcet winner, cycling is a general possibility for collective decision making, 89See generally Kenneth J. Arrow, Social Choice and Individual Values (1951); Peter C. Ordeshook, Game Theory and Political Theory: An Introduction 62 (1986). A Condorcet winner does emerge in the case of unidimensional space and single-peaked preferences held by an odd number of voters. Riker, supra note 83 at 126; see also Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in Positive Theories of Congressional Institutions 5 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995) [hereinafter Shepsle & Weingast, Positive Theories]. and McKelvey’s Theorem implies that virtually any available option can prevail. 90 Richard D. McKelvey, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J. Econ. Theory 472 (1976); see also Ordeshook, supra note 89, at 76–82, 281–82; Fiorina & Shepsle, supra note 30, at 28–29.

Nonetheless, institutional structures in the legislature constrain such otherwise chaotic outcomes. 91See Keith Krehbiel, Spatial Models of Legislative Choice, 13 Leg. Stud. Q. 259 (1988) [hereinafter Krehbiel, Spatial Models]; Shepsle & Weingast, Positive Theories, supra note 89 at 8. The relevant literature began with Shepsle’s classic article demonstrating that exogenous institutional mechanisms can produce stable legislative outcomes—what he called “structure-induced equilibrium.” Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27 (1979). A principal determinant of which option ultimately wins is voting order, and a principal determinant of voting order is the preference of the agenda setter. 92See Ordeshook, supra note 89, at 65–66 (explaining effect of agenda-setting power on voting outcomes); Riker, supra note 83, at 65, 69–73 (same); Fiorina & Shepsle, supra note 30, at 29 (same). Assuming that all members of the committee or the legislature vote sincerely, the member who sets the voting agenda effectively may determine which option wins. 93Ordeshook, supra note 89, at 65–66. Continuing with the example above, member B, if given the power to set the voting agenda, can ensure that option z (her preferred option) prevails by setting the voting order as follows: first, pairing option x against option y; then, pairing the winner against option z. Under that voting order, option x would defeat option y in the first round (members A and B would vote for option x), and option z would defeat option x in the second round (members B and C would vote for option z). Likewise, member A could set the agenda to ensure a victory for option x, and member C could do so to ensure a victory for option y94 For simplicity of presentation, this example assumes that the members vote sincerely. But assuming that the members vote strategically does not significantly change the result. Ordeshook, supra note 89, at 281–83; Fiorina & Shepsle, supra note 30, at 30–31. Also, political theory suggests that agenda control becomes more tenuous with incomplete and asymmetric information about the preferences of individual legislators. Ordeshook, supra note 84, at 227–34. House managers, however, mitigate such information problems through an extensive whip system. See Sinclair, Legislators, supra note 30, at 116–35 (explaining the House whip system).

Table 2

Winners Under Different Agenda Setters

 

 

Agenda Setter

 

 

Member A

 

 

Member B

 

 

Member C

 

 

Voting Agenda

 

 

y vs. z;

winner vs. x

 

 

x vs. y;

winner vs. z

 

x vs. z;

winner vs. y

 

Winner

 

 

x

 

z

 

y

 

In the same manner, the authority of the closed rule allows House managers to influence or control voting outcomes. 95 As such, the closed rule is properly located among the institutional mechanisms that produce stability in the House. See Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 Public Choice 503, 514 (1981); Shepsle, supra note 91, at 54–55. This point was recognized even before Shepsle introduced the concept of “structure-induced equilibrium.” See Blydenburg, supra note 78. It should be noted that even the open rule is embedded in particular institutional constraints on floor activity that stabilize outcomes (helping to prevent the outright chaos implied by McKelvey’s Theorem). See generally Barry R. Weingast, Floor Behavior in the U.S. Congress: Committee Power Under the Open Rule, 83 Am. Pol. Sci. Rev. 795 (1989) [hereinafter Weingast, Floor Behavior]. The closed rule enables managers to limit floor action to a simple pairwise vote of their selected version of any measure against the status quo, thereby blocking all competing versions of the measure from consideration. At the extreme, managers can use the closed rule even to prevent floor consideration of a Condorcet winner. 96 There remains, however, the possibility that a Condorcet winner blocked by a closed rule may emerge as the floor winner if the minority offers the Condorcet winner in a motion to recommit with instructions. See supra note 71. For a broader argument that “negative agenda power”—the ability to block measures from floor consideration—constitutes a critical function of House managers, see Cox & McCubbins, Setting the Agenda, supra note 9, at 3–5, 37–197. Consider another example, using a simple one-dimensional model. Assume that the House is taking up immigration reform and that members have introduced three measures. Measure 1 corresponds to the floor median; Measure 2, which is to the left of Measure 1, corresponds to the preferences of House managers and is the measure reported by the committee of jurisdiction; and Measure 3, which is to the right of Measure 1, corresponds to the preference of a significant faction in the majority party.

Whip counts confirm that any of the three measures would defeat the status quo. That is, the three measures all stand closer to the floor median than does the status quo (so: |a - b| < |b - d| and |b - c| < |b - d|). The whip counts also confirm that, in pairwise voting, Measure 1 would defeat either Measure 2 or Measure 3 (because Measure 1 is the floor median) and that Measure 3 would defeat Measure 2 (so: |b - c| < |a - b|). 97See James M. Enelow & Melvin J. Hinich, The Spatial Theory of Voting: An Introduction 8–13 (1984) (explaining one-dimensional models of spatial voting).

After the committee of jurisdiction reports Measure 2, leadership must determine what type of special rule the Rules Committee will report for the measure. If Measure 2 comes to the floor under a rule allowing members to offer Measure 1 and Measure 3 as amendments, Measure 1 (as the floor median) will prevail. 98 Krehbiel, Spatial Models, supra note 91, at 305. If Measure 2 comes to the floor under a rule allowing a member to offer Measure 3 but not Measure 1 as an amendment, Measure 3 will prevail: it will first defeat Measure 2 and then will defeat the status quo. But if Measure 2 comes to the floor under a closed rule, Measure 2 will prevail: it will defeat the status quo in a simple pairwise vote. 99Id. If Measure 2 comes to the floor under a closed rule, the minority can potentially secure passage of either Measure 1 or Measure 3 by offering Measure 1 or Measure 3 as a motion to recommit with instructions. See supra note 71. Using the closed rule in this case ensures that the House managers can protect Measure 2, their preferred version, from the two competing versions that otherwise would defeat it. 100 Manager preferences on measures likely will reflect, in part, the preferences of the rank-and-file members of the majority party. See generally Cox & McCubbins, Setting the Agenda, supra note 9 (arguing that party leaders aggregate and promote preferences of party rank and file). Because the relationship between managers and the rank and file is an agency relationship, however, manager preferences likely diverge from the preferences of the majority-party rank and file in non-trivial respects. See Fiorina & Shepsle, supra note 30, at 18–21 (discussing the principal’s difficulty in controlling an agent). Of course, manager preferences do not always have sufficient support to prevail on the floor. When the House initially passed its measure for health care reform on November 7, 2009, for example, the Democratic leadership determined that its preferred version—which did not include the strict limits on federal funding of abortions sought by a faction of the Democratic party—would not pass on the floor. The leadership, therefore, allowed a floor amendment that included those limits. David M. Herszenhorn & Jackie Calmes, Abortion Was at Heart of Wrangling, N.Y. Times, Nov. 8, 2009, at A24. Even then, however, House managers used an effectively closed rule for the measure to ensure that the floor amendment setting out the abortion funding limitations would be exactly as negotiated by the House managers and the faction seeking the limitations. Id. For further discussion of manager preferences, see infra note 283. And, in fact, House managers often use closed rules for precisely this purpose. 101 John H. Aldrich & David W. Rohde, Congressional Committees in a Partisan Era, in Congress Reconsidered 249, 253–54 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 8th ed. 2005); see also Stanley Bach & Steven S. Smith, Managing Uncertainty in the House of Representatives: Adaptation and Innovation in Special Rules 55, 57, 91 (1988); Cox & McCubbins, Setting the Agenda, supra note 9, at 126–27; Oleszek, supra note 24, at 127; Ordeshook, supra note 84, at 79−80; Sinclair, Legislators, supra note 30, at 32–33, 70, 136–62, 219, 303; Sinclair, Unorthodox Lawmaking, supra note 15, at 30−31, 112, 199, 203−04, 211; Smith, supra note 30, at 76, 191; Dodd & Oppenheimer, supra note 33, at 49; Guéron, supra note 54, at 1211−12.

The closed rule also facilitates control over the floor temporal agenda. Spatial voting models generally assume that a committee or legislature remains in session indefinitely, such that time presents no constraint on the passage of measures. 102Cox & McCubbins, Setting the Agenda, supra note 9, at 44. However, the Constitution sets the duration of each Congress at two years, thereby fixing a temporal boundary on the authority of any one Congress to enact legislation. 103U.S. Const. art. I, § 2. With thousands of measures introduced in each Congress, many of which are reported favorably by the committees of jurisdiction, floor time in the House is a scarce resource that must be allocated carefully among the measures making up the majority’s legislative program. The minority potentially can block passage of the last measures on the majority’s program by consuming so much floor time on the first measures that the constitutional time limit expires before the last measures reach the floor. Proposing, debating, and voting on floor amendments take time, and the minority may pursue amendments that have little or no prospect of passage simply to delay progress on the floor. 104Bach & Smith, supra note 101, at 54; Cox & McCubbins, Setting the Agenda, supra note 9, at 55–56; Sinclair, Legislators, supra note 30, at 77–78; Sinclair, Unorthodox Lawmaking, supra note 15, at 29; Smith, supra note 30, at 36, 40.

The closed rule enables House managers to block the dilatory floor moves of the minority. 105Cf. Sinclair, Unorthodox Lawmaking, supra note 15, at 279. By preventing all floor amendments on a measure, the closed rule expedites floor consideration of the measure and conserves time. Even very complex legislation—such as the cap-and-trade measure passed by the House in June 2009—can be brought to the floor, debated, and passed within a few hours under the protection of a closed or effectively closed rule. Thus, by asserting control over the temporal agenda on the floor through the closed rule, House managers ensure, to the greatest extent possible, that every measure on the majority’s legislative program will a reach final vote before the Congress expires. 106See infra Part II.B. Democratic managers used the closed rule to control the temporal agenda on the floor during the self-imposed “100 Hours” time limit at the beginning of the 110th Congress. See Oleszek, supra note 24, at 139; Sinclair, Unorthodox Lawmaking, supra note 15, at 286−87. Similarly, Republican managers used the closed rule to control the temporal agenda on the floor during consideration of the “Contract with America” legislation. Sinclair, Unorthodox Lawmaking, supra note 15, at 29.

The closed rule locates this control over both the spatial and temporal floor agenda in the managers as agents of the full House. No one member among the managers holds control over the floor agenda to the exclusion of the other managers, and the managers as a group must submit each closed rule to the rank and file for ratification. In the first instance, the chair of the committee of jurisdiction reporting a measure has extensive influence—and, often, outright control—over the substantive content of the measure. 107Oleszek, supra note 24, at 89−107. Once the measure leaves the committee of jurisdiction, other managers—particularly the members of the majority-party leadership—may or may not rewrite the measure before bringing it to the floor. 108Sinclair, Unorthodox Lawmaking, supra note 15, at 20−23. In any event, those managers decide whether to honor a request from the chair of the reporting committee to call up the measure under a rule disallowing floor amendments. 109Oleszek, supra note 24, at 123−28. By using the closed rule, managers ensure that the version of the measure approved by the committee chair and by leadership will be put to a vote on final passage and that the vote cannot be delayed by floor amendments. In short, the spatial and temporal agenda control that the closed rule grants to House managers is shared among the managers. 110 However, the leadership, which holds the ultimate influence over the decisions of the Rules Committee, likely enjoys a much larger share of that agenda control than does the chair of the reporting committee. For an account of agenda-setting power as a “cartel” controlled by House managers, see Cox & McCubbins, Setting the Agenda, supra note 9, at 9.

Still, this managerial control is not absolute. The chair of the reporting committee and the leadership decide together on the policy content of a measure and decide to call it up under a closed rule, but the closed rule itself must be approved by a majority vote of the full House. 111Oleszek, supra note 24, at 155−56; cf. Fiorina & Shepsle, supra note 30, at 31–32 (arguing that a “full-blown theory of agenda setting” should account for “the institutional constraints (incentives and monitoring) that followers impose on their leaders in their agenda-setting activities”). The rank and file thus retain the power to reject the floor agenda proposed by managers. But that point should not be overstated. In general, the rank and file exercise limited oversight over managerial decisions to use the closed rule; outright rejection of a special rule of any kind—whether or not closed—is very rare. 112Oleszek, supra note 24, at 155−56. Consider, for example, the voting outcomes associated with the initial attempt to pass the economic bailout measure in the House during the fall of 2008: the full membership approved the special rule for consideration of the measure by a vote of 220-198 and then defeated the measure itself by a vote of 205-228. 154 Cong. Rec. H10335, H10410 (daily ed. Sept. 29, 2008). Voting down a rule is understood as a sharp rebuke to House managers. It was for this reason that President Reagan, after cooperating with the Democratic managers of the House to advance his tax-reform measure, felt “humiliated” when House Republicans engineered a floor defeat of the modified closed rule for the measure. 113See supra Introduction; see also Oleszek, supra note 24, at 142. The requirement that House managers obtain ratification of a closed rule on the floor thus presents only a weak constraint on their use of the closed rule. Although managerial power over the spatial and temporal agenda on the floor is held in an agency relationship, the rank and file, as principals, grant managers significant latitude in using that power. 114 This Article generally does not consider the Senate, and it thereby sets aside important questions that would have to be addressed in considering agenda control within Congress as a whole. The Senate does not have a closed rule, and agenda control in the Senate generally is exercised through ad hoc unanimous consent agreements (which obviously require the approval of all senators). Oleszek, supra note 24, at 203–11. One might argue that legislative processes in the Senate provide a natural experiment for considering the effect of the closed rule in the House. In other words, one might argue that what happens in the Senate is suggestive of what would happen in the House absent the closed rule and that, accordingly, claims about the closed rule can be tested by reference to the Senate. But the comparison does not hold. The Senate and the House differ in several important respects apart from the closed rule. First, the Senate, unlike the House, is not organized around the principle of simple majority rule. The de facto need for a supermajority of senators on many measures normally means that the majority party cannot assume that it will have its way on the floor. Second, the Senate recognizes substantially greater privileges for individual senators than does the House for its members. Third, the Senate does not have the germaneness requirement that the House does for floor amendments; thus, an unwelcome amendment cannot be avoided in the Senate simply by refusing to call up a measure for which the unwelcome amendment would be in order. Those points (and others) imply that the legislative proceedings in the Senate do not reliably reflect how the House would operate without the closed rule. A Senate with a closed rule likely would have stronger managerial agenda control than does the current Senate, and a House without a closed rule likely would have weaker managerial agenda control than does the current House. But a House without a closed rule likely would not look very much at all like the current Senate.

II. The Closed Rule in the 109th and 110th Congresses

The closed rule provides House managers with a potentially important instrument for agenda control, but that does not necessarily imply that managers use the closed rule for that purpose. The standard claim in the academic literature is that House managers normally exercise their agenda control through limiting rules rather than through closed rules. 115 Political scientists normally would refer to such rules as “restrictive rules.” See, e.g., Bach & Smith, supra note 101, at 50–74; supra note 73. Many scholars writing before the Republicans took control of the House in 1995 generally considered the closed rule to be of secondary importance; they considered the closed rule to be an exceptional instrument that managers largely had abandoned in favor of limiting rules. 116See, e.g., Arnold, supra note 9, at 103; Bach & Smith, supra note 101, at 55–57; Sinclair, Legislators, supra note 30, at 140–41, 161. Even more recent analyses significantly understate the incidence of the closed rule. For example, one prominent political scientist flatly maintained as late as 2003 that the closed rule “is seldom invoked.” 117Gerry Mackie, Democracy Defended 170 (2003). In 2001, two scholars argued that “[c]urrently, some intermediate type of restrictive rule is used for most bills.” 118 Vijay Krishna & John Morgan, Asymmetric Information and Legislative Rules: Some Amendments, 95 Am. Pol. Sci. Rev. 435 (2001). And, at the start of the 110th Congress, another political scientist acknowledged the increased use of the closed rule but attributed it to Republican hegemony in the House, arguing that “Republicans . . . made extremely restrictive floor procedures standard operating procedure, using closed rules much more frequently than Democrats ever did.” 119Sinclair, Unorthodox Lawmaking, supra note 15, at 280; see also Dodd & Oppenheimer, supra note 33, at 49. Even now, Sinclair continues to emphasize restrictive rules over closed rules. Barbara Sinclair, Question: What’s Wrong with Congress? Answer: It’s a Democratic Legislature, 89 B.U. L. Rev. 387, 393 (2009) (“Thus, special rules . . . that bar all amendments except those explicitly allowed by the . . . Rules Committee [i.e., limiting rules] have become routine.”). Similarly, legal academics have identified greater use of the closed rule with Republican control of the House. 120 Erica Rosenberg, Life Under the Republicans: The Subversion of Democracy in the House Resources Committee, 13 Hastings W.-Nw. J. Envtl. L. & Pol’y 233, 243–45 (2007); Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 2001–2006 and the Future of One-Party Rule, 23 J.L. & Pol. 233, 256–63 (2007).

This Part contests those claims. It reviews the legislative record of the closed rule in the Republican House of the 109th Congress (2005 through 2007) and the Democratic House of the 110th Congress (2007 through 2009). The comparison of back-to-back Congresses under different majorities establishes that House managers regularly use the closed rule for controversial measures and that there is no appreciable difference between Republicans and Democrats on this point. This Part also shows the importance of the closed rule to managerial agenda control by establishing that the closed rule has a genuinely restrictive effect on the amending activity of the rank and file of both the minority and the majority, that managers in fact use the closed rule to control both the spatial agenda and the temporal agenda, and that the need for ratification of closed rules by rank-and-file members imposes only weak constraints on House managers.

A. Counting the Closed Rules

Consistent with longstanding practice, House managers brought up many of the measures passed during the 109th and 110th Congresses under the unanimous-consent and suspension-of-the-rules procedures. Time is limited for each Congress, 121U.S. Const. art. I, § 2. and floor time is a particularly scarce resource that managers must allocate with care. Bringing a non-controversial measure to the floor for unanimous consent or by a motion to suspend the rules allows for quick disposition and, importantly, conserves floor time for measures that cannot win unanimous or supermajority support. By contrast, managers in the 109th and 110th Congresses brought controversial measures to the floor under special rules, and the type of special rule that they used most often was the closed rule.

Members of the House introduced 8,152 measures during the 109th Congress, of which 1,277 passed. 122 These data were provided by the Georgetown Law Library. All data are on file with the author. About half of the successful measures were passed by unanimous consent or by suspension of the rules; 123Id. most of the remaining measures came to the floor under special rules reported by the Rules Committee or were themselves special rules. Legislative activity in the 110th Congress was comparable, although the numbers were larger. House members introduced 9,409 measures during the 110th Congress, of which 1,964 passed. 124Id. Again, approximately half of the successful measures were passed by unanimous consent or suspension of the rules, 125Id. and most of the other successful measures came to the floor under special rules or were themselves special rules.

During the 109th Congress, the Rules Committee reported 187 resolutions that, together, set forth 143 special rules. 126See infra Appendix 2-A and note 337 (explaining that the Rules Committee also reported resolutions not bearing on the floor-amendment process, such as general debate rules and rules for consideration of conference reports). As shown in Table 3, the plurality of special rules, 38% of the total, were closed rules, and 50% of the special rules were either closed or effectively closed rules.

Table 3

Special Rules in the 109th Congress

 

 

Type of Rule

 

 

Number

 

Percentage

(Rounded)

 

 

Closed

 

55

 

38

 

Effectively Closed

 

17

 

12

 

Limiting

 

48

 

34

 

Open

 

23

 

16

 

Total

 

143

 

100

 

The numbers are comparable for the 110th Congress. The Rules Committee reported a total of 221 resolutions, setting forth 185 special rules. 127See infra Appendix 3-A and note 358 (explaining that the Rules Committee also reported resolutions not bearing on the floor-amendment process, such as general debate rules and rules for consideration of conference reports). As shown in Table 4, the plurality of special rules, 41%, were closed rules, and 54% of the special rules were either closed or effectively closed rules.

Table 4

Special Rules in the 110th Congress

 

 

Type of Rule

 

 

Number

 

Percentage

(Rounded)

 

 

Closed

 

76

 

41

 

Effectively Closed

 

24

 

13

 

Limiting

 

62

 

34

 

Open

 

23

 

12

 

Total

 

185

 

100

 

Thus, in both the Republican House of the 109th Congress and the Democratic House of the 110th Congress, fully half of all controversial measures—those that could not be brought to the floor for unanimous consent or under suspension of the rules—were called up under rules that prevented or effectively prevented the rank and file from offering floor amendments. In each of those cases, House managers paired their selected version of a measure against the status quo in a simple up-or-down vote. 128 Special rules reported by the Rules Committee are not subject to amendment on the floor except in the rare case when the House defeats a motion to order the previous question on the rule. See supra note 60. The rank and file could accept or reject the measure as proposed by House managers, but they could not modify it.

The prominence of the closed rule during these two Congresses is underscored by locating it within the full spectrum of special rules. Well under one-fifth of the special rules during this period—16% in the 109th Congress and 12% in the 110th Congress—were entirely open to floor amendments. Between the extremes of the completely closed rules and the completely open rules, most special rules imposed moderate or severe limitations on floor amendments. The effectively closed rules constituted 12% of the special rules in the 109th Congress and 13% of the special rules in the 110th Congress. For the seven effectively closed rules in the 109th Congress with respect to which the Rules Committee provides a record of amendments submitted to the committee, the effectively closed rules disallowed a total of fifty amendments—an average of more than seven disallowed amendments for each effectively closed rule. In the 110th Congress, there were fourteen effectively closed rules for which the Rules Committee provided a record of submitted amendments. These rules disallowed a total of 140 amendments—an average of ten disallowed amendments per effectively closed rule. Even the limiting rules had very restrictive effects. They often kept more than half the amendments submitted to the Rules Committee off the floor 129E.g., infra Appendix 2-A, lines 4, 30, 80; Appendix 3-A, lines 13, 41, 64. and in some cases disallowed dozens of amendments that members wanted to offer. 130E.g., infra Appendix 2-A, lines 101, 104; Appendix 3-A, line 78.

As would be expected, the resolutions from the Rules Committee offering closed rules often were contested on the House floor; nonetheless, House managers enjoyed outstanding success rates when the full House voted on closed rules. For more than 80% of the closed rules in the 109th Congress and more than 94% of those in the 110th Congress, members demanded either a record vote or a counting of the yeas and nays, whether on ordering the previous question for the rule or on its final passage. 131See infra Appendices 2-B & 3-B. The demand for a recorded floor vote, whether on the motion to order the previous question or on final passage, provides only an imperfect indicator of the controversial character of a special rule. As indicated particularly in Appendix 3-B, the minority in the 110th Congress demanded recorded votes for the majority of all closed, effectively closed, limiting, and even open rules. Because special rules of any kind often waive points of order, a member may rationally vote against a special rule even if the member does not object to the special rule’s treatment of floor amendments. Bryan W. Marshall, Rules for War: Procedural Choice in the U.S. House of Representatives 5 (2005); see also Bach & Smith, supra note 101, at 105. Nonetheless, not a single closed or effectively closed rule failed to pass during the 109th and 110th Congresses (although nine in the 109th Congress and five in the 110th Congress were tabled by House managers). 132See infra Appendix 2-B, lines 12, 13, 50, 66, 104, 116, 118, 132, 134; Appendix 3-B, lines 48, 104, 111, 171, 174. In short, House managers in the 109th and 110th Congresses generally could expect the rank and file to ratify the closed and effectively closed rules that managers brought to the floor. 133 This success rate reflects the general success that managers have on the floor with special rules, including limiting rules and open rules (although open rules are somewhat less likely to be challenged).

B. Characterizing the Closed Rules

Close review confirms that House managers in the 109th and 110th Congresses used the closed rule to control the floor agenda precisely when such control was most important. The Republican and Democratic managers’ regular use of the closed rule for divisive measures allowed them to preempt unwanted amendments, including amendments that would have pulled measures away from the positions they had approved or that would have caused unstable coalitions to unravel on the floor. The Republican and Democratic managers also used the closed rule to prevent the minority from drawing out floor votes when managers began to run up against the end of a legislative session or against a self-imposed deadline for completing their legislative program.

The correspondence of closed rules to divisive measures during the 109th and 110th Congresses was not one-to-one. That is, not every divisive measure brought to the floor had a closed rule, and not every closed rule protected a divisive measure. But most of the legislative topics brought up under closed rules in the 109th and 110th Congresses—ranging from the war in Iraq and flag desecration to oil exploration in the Arctic National Wildlife Refuge and permanent repeal of the estate tax—readily stand out as controversial matters that marked significant policy differences within the House. In those cases, the closed rule allowed managers to bring their selected version of a measure to the floor without any threat that it would be changed by floor amendments.

Both the Republican and the Democratic managers regularly called up measures concerning national security, the military, and immigration under closed rules. In the 109th Congress, Republican managers used closed rules for measures supporting military operations in Iraq, 134 H.R. Res. 619, 109th Cong. (2005). declaring that “the United States will prevail in the Global War on Terror and the struggle to protect freedom from the terrorist adversary,” 135 H.R. Res. 868, 109th Cong. (2006). supporting anti-terrorism intelligence and law-enforcement programs, 136 H.R. Res. 896, 109th Cong. (2006). expressing the “sense of the House” on the fifth anniversary of September 11, 2001, 137 H.R. Res. 996, 109th Cong. (2006). and endorsing military recruiters’ access to colleges and universities. 138 H.R. Res. 59, 109th Cong. (2005). On the highly charged matter of immigration, Republican managers brought four separate measures—the Secure Fence Act of 2006, 139 H.R. Res. 1002, 109th Cong. (2006). the Border Tunnel Prevention Act of 2006, 140 H.R. Res. 1018, 109th Cong. § 1 (2006). the Community Protection Act of 2006, 141Id. § 2. and the Immigration Law Enforcement Act of 2006 142Id. § 3.—to the floor under closed rules.

Once Democrats took control of the House in the 110th Congress, their new managers also used the closed rule to prevent floor amendments on these subjects. Thus, Democratic managers brought to the floor under closed rules a measure disapproving of President George W. Bush’s “troop surge” in Iraq 143 H.R. Res. 157, 110th Cong. § 1 (2007). and two measures providing for the withdrawal of U.S. troops from Iraq. 144 H.R. Res. 533, 110th Cong. § 1 (2007); H.R. Res. 387, 110th Cong. § 1 (2007). Democratic managers also used closed rules for other measures affecting the military 145 H.R. Res. 601, 110th Cong. § 1 (2007); H.R. Res. 387, 110th Cong. § 2 (2007). and for the 2008 amendments to the Foreign Intelligence Surveillance Act (which, among other matters, granted telecommunications companies immunity from civil liability for their cooperation in the federal government’s “warrantless wiretapping” program). 146 H.R. Res. 1285, 110th Cong. (2008).

In both Congresses, managers brought up measures concerning social issues, public health and welfare, and governmental operations under closed rules. In the 109th Congress, Republican managers used an effectively closed rule for consideration of the Broadcast Indecency Act of 2005, which increased sanctions for indecent television broadcasts (the measure was prompted by the notorious halftime program at Super Bowl XXXVIII). 147 H.R. Res. 95, 109th Cong. (2005). Republican managers wrote closed rules for two measures concerning possible federal intervention in the matter of Theresa Schiavo, an incapacitated Florida woman whose family was locked in a bitter dispute over removal of her life support. 148 H.R. Res. 182, 109th Cong. (2005); H.R. Res. 162, 109th Cong. (2005). Republican managers also used an effectively closed rule for floor consideration of a constitutional amendment banning desecration of the U.S. flag 149 H.R. Res. 330, 109th Cong. (2005). and closed rules for the Marriage Protection Amendment 150 H.R. Res. 918, 109th Cong. (2006). and the Veterans’ Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006. 151 H.R. Res. 1038, 109th Cong. (2006).

Democratic managers brought corresponding measures to the floor under closed rules during the 110th Congress. Thus, managers used closed rules for measures to provide the District of Columbia with voting representation in the House, 152 H.R. Res. 317, 110th Cong. (2007); H.R. Res. 260, 110th Cong. (2007). a measure on hate crimes, 153 H.R. Res. 364, 110th Cong. (2007). a measure on “lobbying transparency,” 154 H.R. Res. 437, 110th Cong. (2007). a measure on paid parental leave for federal employees, 155 H.R. Res. 1277, 110th Cong. (2008). a measure on employment of persons with disabilities, 156 H.R. Res. 1299, 110th Cong. (2008). and measures on stem-cell research, 157 H.R. Res. 464, 110th Cong. (2007). Medicare, 158 H.R. Res. 594, 110th Cong. (2007). children’s health insurance, 159 H.R. Res. 774, 110th Cong. (2007). and insurance coverage for mental health and addiction. 160 H.R. Res. 1014, 110th Cong. (2008). Democratic managers also used closed rules for floor consideration of measures citing two officials in President Bush’s Administration for contempt of Congress and authorizing the Judiciary Committee to pursue litigation against them. 161 H.R. Res. 982, 110th Cong. (2008).

Republican and Democratic managers relied on the closed rule to protect potentially unstable compromises negotiated between legislators and interest groups. Managers know that, even if the content of a measure is not inherently divisive, a compromise made at the pre-floor stages might unravel if floor amendments begin to modify particular parts of the deal. The closed rule forecloses that possibility by disallowing any amendments once the compromise measure has left the direct control of House managers. The credible promise—or threat—that a measure will come to the floor under a closed rule encourages interest groups to negotiate with managers during the pre-floor stages and signals that neither side will be able to repudiate the deal by means of a floor amendment.

Thus, managers of both parties brought almost every tax measure to the floor during the 109th and 110th Congresses under closed and effectively closed rules. Tax legislation can often be divisive and, in any event, often entails complex compromises struck between the Ways and Means Committee and interest groups. 162Robinson, supra note 50, at 44−45. The closed rule protects those compromises. In the 109th Congress, only one amendment was permitted for the Death Tax Repeal Permanency Act of 2005, 163 H.R. Res. 202, 109th Cong. (2005). and no amendments were permitted for the Pension Protection Act of 2005, 164 H.R. Res. 602, 109th Cong. (2005). the 527 Reform Act of 2005, 165 H.R. Res. 755, 109th Cong. (2006). the Permanent Estate Tax Relief Act of 2006, 166 H.R. Res. 885, 109th Cong. (2006). the Estate Tax and Extension of Tax Relief Act of 2006, 167 H.R. Res. 966, 109th Cong. (2006). or the Pension Protection Act of 2006. 168 H.R. Res. 966, 109th Cong. (2006). In the 110th Congress, no amendments were allowed for the Estimated Tax Safe Harbor Act, 169 H.R. Res. 317, 110th Cong. (2007). the AMT Relief Act of 2007, 170 H.R. Res. 861, 110th Cong. (2007). the Taxpayer Assistance and Simplification Act of 2008, 171 H.R. Res. 1102, 110th Cong. (2008). the Emergency Extended Unemployment Compensation Act of 2008, 172 H.R. Res. 1265, 110th Cong. (2008). the Alternative Minimum Tax Relief Act of 2008, 173 H.R. Res. 1297, 110th Cong. (2008). or the Renewable Energy and Job Creation Tax Act of 2008. 174 H.R. Res. 1501, 110th Cong. (2008); H.R. Res. 1502, 110th Cong. (2008). In that Congress, Democratic managers allowed only one floor amendment each for the Temporary Tax Relief Act of 2007 175 H.R. Res. 809, 110th Cong. (2007). and the Renewable Energy and Energy Conservation Tax Act of 2008. 176 H.R. Res. 1001, 110th Cong. (2008).

Managers in the 109th and 110th Congresses also used closed rules to protect compromise legislation that pitted interest groups directly against each other. In the 109th Congress, Republican managers used closed and effectively closed rules for measures addressing bankruptcy reform, 177 H.R. Res. 211, 109th Cong. (2005). small businesses, 178 H.R. Res. 379, 109th Cong. (2005). energy production, 179 H.R. Res. 481, 109th Cong. (2005). refinery permitting, 180 H.R. Res. 842, 109th Cong. (2006). oil exploration in the Arctic National Wildlife Refuge, 181 H.R. Res. 835, 109th Cong. (2006). and tort reform. 182 H.R. Res. 508, 109th Cong. (2005). In the 110th Congress, Democratic managers used closed and effectively closed rules for measures addressing equal pay for women, 183 H.R. Res. 579, 110th Cong. (2007). commodities-market reform, 184 H.R. Res. 1449, 110th Cong. (2008). consumer protection, 185 H.R. Res. 1476, 110th Cong. (2008). economic assistance to the domestic automobile industry, 186 H.R. Res. 1534, 110th Cong. (2008). and several measures addressing renewable energy. 187 H.R. Res. 1212, 110th Cong. (2008); H.R. Res. 1433, 110th Cong. (2008); H.R. Res. 66, 110th Cong. (2007); H.R. Res. 615, 110th Cong. (2007).

Appropriations measures provide an instructive counterpoint. Unlike zero-sum legislation such as bankruptcy reform and consumer protection that confers gains on one interest group and imposes corresponding losses on another interest group, appropriations measures often simply distribute government largesse. In many cases, an appropriation made for the benefit of a particular group does not require or precipitate an offsetting reduction in an appropriation made for the benefit of another group. Additionally, lawmakers of both parties rely on the pork-barrel opportunities presented by appropriations measures to promote their incumbency. Thus, House managers have little reason to shield appropriations measures from floor amendments, and managers normally call them up on the floor with open rules. In fact, resolutions bringing appropriations measures to the floor accounted for twenty of the twenty-three open rules in the 109th Congress and twelve of the twenty-three open rules in the 110th Congress. 188 In the 109th Congress, the following resolutions provided open rules for appropriations measures: H.R. Res. 151; H.R. Res. 287; H.R. Res. 291; H.R. Res. 298; H.R. Res. 303; H.R. Res. 314; H.R. Res. 315; H.R. Res. 337; H.R. Res. 341; H.R. Res. 342; H.R. Res. 725; H.R. Res. 818; H.R. Res. 821; H.R. Res. 830; H.R. Res. 832; H.R. Res. 836; H.R. Res. 851; H.R. Res. 865; H.R. Res. 877; and H.R. Res. 890. In the 110th Congress, the following resolutions provided open rules for appropriations measures: H.R. Res. 473; H.R. Res. 480; H.R. Res. 481; H.R. Res. 498; H.R. Res. 514; H.R. Res. 517; H.R. Res. 547; H.R. Res. 558; H.R. Res. 562; H.R. Res. 581; H.R. Res. 596; and H.R. Res. 1384.

House managers during the 109th and 110th Congresses also used the closed rule to exercise temporal agenda control. As each Congress drew to a close, managers relied more heavily on closed and effectively closed rules. The last fifteen special rules in the 109th Congress and twenty-one of the last twenty-five special rules in that Congress were closed. In the 110th Congress, the last eleven special rules and twenty-six of the last thirty-three special rules were closed or effectively closed. With the constitutional time limit on each Congress approaching, the closed rule allowed managers to conserve the floor time available for the remaining items on the majority’s legislative program. Amendments offered by the minority—even those that the majority could safely defeat on the floor—would have presented problems for the majority if they had consumed too much floor time and thereby had prevented the majority from bringing up measures that it otherwise could have passed. 189 House managers used the closed rule to exercise temporal agenda control again at the end of the first session of the 111th Congress. On the morning of December 16, 2009, the Rules Committee reported House Resolution 976, setting forth closed rules for four separate measures. H.R. Res. 976, 111th Cong. (2009). The resolution, which was approved by the floor the same day, allowed consideration of the four measures before Speaker Nancy Pelosi left Washington to participate in the final hours of an international meeting in Copenhagen regarding global warming. Tory Newmyer, House Dashes for the Finish; Leaders Aim to Exit Tonight, Roll Call, Dec. 16, 2009, at 1.

Managers likely considered temporal agenda control to be particularly important at the end of the 109th Congress and the beginning of the 110th Congress. The 109th Congress wound down during a lame-duck session held after the Democrats won a majority of House seats for the 110th Congress. Not surprisingly, all three special rules reported by the Rules Committee during that period—the last opportunity for the Republican managers to push their legislative program—were closed rules. 190 H.R. Res. 1092, 109th Cong. (2006); H.R. Res. 1100, 109th Cong. (2006); H.R. Res. 1105, 109th Cong. (2006). By comparison, the new Democratic Speaker of the House had designated the beginning of the 110th Congress as the “100 Hours” during which she promised passage of six prominent measures from the new majority’s legislative program. 191 Victor H. Fazio, It’s Really About ’08, Nancy, Wash. Post, Jan. 7, 2007, at B1; “100-Hour” Agenda Is Completed, Wash. Post, Jan. 20, 2007, at A6. Recalling, no doubt, their own efforts to obstruct the Republican majority’s enactment of the “Contract with America” during the first “100 Days” of the 104th Congress, 192Oleszek, supra note 24, at 128. the Democratic managers directed the Rules Committee to report closed rules 193 H.R. Res. 65, 110th Cong. (2007); H.R. Res. 66, 110th Cong. (2007). for two of the measures, one concerning interest rates on student loans 194 H.R. 5, 110th Cong. (2007). and the other concerning clean energy. 195 H.R. 6, 110th Cong. (2007). The other four measures—implementing the recommendations from the National Commission on Terrorist Attacks Upon the United States, 196 H.R. 1, 110th Cong. (2007). increasing the federal minimum wage, 197 H.R. 2, 110th Cong. (2007). providing for stem-cell research, 198 H.R. 3, 110th Cong. (2007). and requiring the federal government to negotiate the prices of prescription drugs purchased through Medicare 199 H.R. 4, 110th Cong. (2007).—were brought to the floor pursuant to House Resolutions 5 and 6. 200 H.R. Res. 5, 110th Cong. (2007); H.R. Res. 6, 110th Cong. (2007). Although not reported by the Rules Committee, those resolutions provided that none of the four measures could be amended on the floor. Thus, the new Democratic managers brought every item on their “100 Hours” program to the floor under closed rules or the equivalent of closed rules. By blocking all floor amendments, the managers ensured that they would meet their self-imposed but short time limit for passage of the six measures.

C. Assessing the Closed Rules

The review set out above suggests several points about the use of the closed rule in the 109th and 110th Congresses. Specifically, it appears reasonably clear that the Republican managers of the 109th Congress and the Democratic managers of the 110th Congress used the closed rule in substantially the same way, that the closed rule imposed genuine constraints on the floor activities of the rank and file, and that the closed rule gave managers broad discretionary control over the spatial and temporal agenda of the House. The claim made here is not that the review conclusively proves these points; rather, the claim is that the review supports these points as reasonable characterizations of the House legislative process during these two Congresses.

1. Similar Use by Republicans and Democrats

The record in the 109th and 110th Congresses confirms that managers from both parties have established the closed rule as a routine element of the legislative process. Although the minority Republicans bitterly resented the Democrats’ increased reliance on the closed rule throughout the 1980s, 201 Gerald B.H. Solomon & Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 Harv. J. on Legis. 321, 355–58 (1994). they quickly learned to appreciate its usefulness when they gained control of the House in the mid-1990s. 202 See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 29. And, in perfect balance, the Democrats first denounced the closed rule during the period of Republican hegemony 203Id.; supra note 15, at 171–72. but then rediscovered its virtues once they recovered their status as the majority party. 204See Appendix 3-A. Thus, the distribution of closed and effectively closed rules was similar across the 109th and 110th Congresses. Under the Republicans, 38% of special rules were closed, and 12% were effectively closed; 205See supra Table 3. under the Democrats, 41% of special rules were closed, and 13% were effectively closed. 206See supra Table 4.

Additionally, Republican and Democratic managers used the closed rule for similar types of measures. Often, the measures addressed ideological or otherwise divisive legislative subjects, such as the continuation of military action in Iraq, federal funding of stem-cell research, or oil exploration in the Arctic. In other cases, the measures set out compromises among competing interest groups and their legislative allies, and the closed rule was used to protect those compromises from unraveling on the floor. By contrast, non-divisive measures—such as those naming a post office, 207See, e.g., H.R. 3770, 109th Cong. (2006) (recorded vote number 576). condemning the use of prison labor in the People’s Republic of China, 208 H.R. Con. Res. 294, 109th Cong. (2005) (recorded vote number 647). honoring a deceased president, 209 H.R. Res. 15, 110th Cong. (2007) (recorded vote number 21). or congratulating the winner of the college football championship game 210 H.R. Res. 39, 110th Cong. (2007) (recorded vote number 25).—did not require the protection of the closed rule. Managers also set aside the closed rule when the House opened up its pork barrel during the appropriations process: most appropriations measures considered on the House floor during the 109th and 110th Congresses were brought up under open rules allowing any member to offer any amendment.

There is little reason to think that the similar use of the closed rule in the 109th and 110th Congresses is an aberration. Rather, these parallel records appear to reflect what has become a normal legislative procedure in the House: regular use of the closed rule for the most divisive legislative measures. 211See, e.g., Solomon & Wolfensberger, supra note 201, at 356 (“It seems that the most important and controversial bills are the most likely to be considered under highly restrictive rules.”). Although broad use of the closed rule originated with the Democratic managers of the 1980s and was initially tagged by the Republican minority as an abuse peculiar to the Democratic majority, 212See, e.g., Smith, supra note 30, at 44–45 (describing the Republican minority’s protest against closed and other restrictive rules); Solomon & Wolfensberger, supra note 201, at 355–58 (noting that Republicans generally believed there were too many limitations on floor amendments in 1993). the subsequent management of the House floor first by the Republican majority and then by the reestablished Democratic majority confirms that regular use of the closed rule is now a practice of House managers qua managers. Heavy use of the closed rule no longer aligns with party identity.

2. Constraints Imposed by the Closed Rule

It also appears reasonably clear that the constraints imposed by the closed rule during the 109th and 110th Congresses were genuine—that the closed rule had real “bite” on the amending activity of the rank and file. The sincerity and strength of members’ preferences regarding disallowed floor amendments cannot be ascertained directly. 213See Smith, supra note 30, at 12, 169 (explaining that “gathering systematic data on members’ policy preferences over many issues and years is not possible” and that “even if such a complex analysis were feasible, its conclusions still could be quite misleading”). However, several aspects of the record from the 109th and 110th Congresses strongly imply that the use of the closed rule was not superfluous or irrelevant—that it did not operate simply to prevent rank-and-file members from offering amendments about which they had only weak preferences.

First, it appears that reporting a closed rule had the effect of disallowing a very large number of amendments. The Rules Committee usually did not make publicly available the amendments that members submitted for measures that received closed rules, but the committee often rejected many or even most of the amendments that members submitted for measures that received limiting rules. 214See Appendices 2-A & 3-A. The unrestricted amending activity that rank-and-file members otherwise would have pursued on the measures covered by closed rules should have been comparable to the unrestricted amending activity that those members otherwise would have pursued on measures covered by limiting rules. Thus, the record on specific amendments disallowed by the limiting rules implies that the closed rules preempted as many as several dozen amendments for each measure.

Second, the record of amendments disallowed by limiting rules suggests that the closed rules likely blocked substantial numbers of amendments from both parties. In the 109th Congress, limiting rules allowed about 28% of the amendments submitted by the Democratic minority and about 47% of the amendments submitted by the Republican majority; in the 110th Congress, limiting rules allowed about 20% of the amendments submitted by the Republican minority and about 42% of the amendments submitted by the Democratic majority. 215 Author’s calculations from amendment records provided by the Rules Committee. Although the low numbers of amendments allowed on the minority side are unremarkable, the limiting rules in both Congresses disallowed more than half the amendments submitted on the majority side. 216 Interestingly, bipartisan amendments fared much better in both Congresses: in the 109th Congress, just over 50% of amendments with bipartisan sponsorship were allowed by limiting rules; in the 110th Congress, about 56% of such amendments were allowed. Again, if one assumes that the blocked amending activity for measures covered by limiting rules provides a fair indication of the blocked amending activity for measures covered by closed and effectively closed rules, it appears that the closed and effectively closed rules in the 109th and 110th Congresses cut sharply against all members of the rank and file, whether in the minority or the majority.

Third, the minority’s protests about closed and effectively closed rules during these two Congresses make little sense unless those rules precluded amendments that members sincerely wanted to offer. Just as Republicans had complained about the closed rule throughout the 1980s and the early 1990s, Democrats denounced the closed rule throughout the years of Republican control, including during the 109th Congress. 217See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 171–72. And, of course, Republicans again found the closed rule strongly objectionable during the 110th Congress. 218Supra note 18. The consistency of minority complaint about the closed rule as an abuse of the majority’s power suggests that the closed rule was highly effective in disallowing amendments that reflected members’ genuine policy preferences.

3. Discretionary Agenda Control

The experiences in the 109th and 110th Congresses demonstrate not only that the Republican and Democratic managers used the closed rule to exercise control over the spatial and temporal agenda on the House floor but also that the rank and file conferred substantial discretionary authority on the managers to decide when and how to use the closed rule. In both Congresses, managers enjoyed very impressive success rates when they brought closed rules (and, for that matter, other special rules) to the House floor for ratification. Although both the Republican and the Democratic managers tabled a handful of closed and effectively closed rules, not a single closed or effectively closed rule was defeated in a floor vote. 219See Appendices 2-B & 3-B. That success rate exceeded the managers’ success rate in passing underlying measures. In other words, although managers were highly likely to secure passage of any particular measure that they brought before the full House, they were still more likely to obtain ratification of the special rule that established the terms and conditions under which that measure would be considered on the floor.

Thus, both the Republican managers in the 109th Congress and the Democratic managers in the 110th Congress had expansive authority to determine what measures could be amended on the floor and what measures would be closed to the amendment process. Certainly the managers’ high success rates reflect their attentiveness to the preferences of the rank and file. 220See Sinclair, Unorthodox Lawmaking, supra note 15, at 270. But these rates also reflect a standing delegation of broad discretionary authority from the rank and file to the managers: during the 109th and 110th Congresses, the rank and file never overturned a managerial decision to use or not to use the closed rule, even when the rank and file ultimately rejected the underlying measure that their managers put before them. During those two Congresses, the Republican and Democratic managers could choose among the variety of special rules—from fully open to fully closed—with confidence that their principals very likely would ratify the choice. That broad discretionary authority over the closed rule allowed managers to exercise control over the floor agenda precisely when such control was most important to the managers. The closed rule perfected their power to define the policy options that could be considered on the floor, to determine the time available for considering those options, and, consequently, to manage substantive policy outcomes.

III. Implications for Institutional Reform

Explaining why Congress structures itself as it does is the domain of political theorists; for legal academics, the more relevant point is whether existing institutional structures should be reformed. Addressing the reform question requires both an assessment of the systemic effects that institutional structures have on the development of statutory law and, more broadly, an evaluation of the democratic character of those structures. To date, legal scholars have effectively ignored the closed rule, even though political theorists have long understood that the closed rule and other agenda-control mechanisms may determine legislative outcomes and even though many critics argue that the closed rule is inherently undemocratic. Building on insights from political theory, this Part addresses important positive and normative questions about the closed rule that the legal literature has not considered.

This Part first evaluates three positive theories of the closed rule developed by political scientists and then offers a different account that emphasizes the closed rule’s broadly managerial character. Turning to the normative inquiry, this Part argues that the closed rule has several undesirable effects on the development of substantive statutory law, but it rejects the more serious criticism that the closed rule is inherently undemocratic. Although regular use of the closed rule in the contemporary House reflects an institutional preference among the rank and file for strong internal control by House managers, that preference is both rational and consistent with representative democracy. The House, like any legislative body, must locate its affairs along the continuum between chaos and control, and members of the House for good reason currently prefer more control and less chaos. Curtailment or elimination of the closed rule raises the prospect of sustained disequilibrium in the House and a diminished institutional capacity to pursue constituent interests. At a minimum, the regular use of the closed rule is not inherently less democratic than the regular use of its polar opposite, the open rule.

A. Managerial Agenda Control Within the House

All else equal, the closed rule affects the allocation of power within the House by shifting discretionary agenda control from the floor to managers. Positive political theorists have tried to explain why the rank and file, who must approve any closed rule, would surrender their power to amend measures on the floor. The theoretical accounts are rich and provocative, but they generally are drawn from behavior that occurred when the open rule was still the norm. This section examines the accounts and generalizes them into a broader explanation—one recognizing that, as demonstrated in Part II, the House now considers one of every two controversial measures under a closed or effectively closed rule. 221 Two methodological notes should be made at the outset. First, the three theories discussed are grounded in detailed formal models and rigorous empirical testing, and there is no pretense here of that type of modeling and testing or, for that matter, of refuting any of the three theories. Rather, the objective here is to offer qualifications on how the theories explain the closed rule and to suggest a different explanation that takes account of the points made in Part II. Second, the three theories and the broader explanation developed in this Article arguably ignore the important point that internal legislative rules and structures, determined as they are by institutional decision processes, may reflect the same pathologies of preference aggregation that plague legislation generally. For example, it may be that the current use of the closed rule reveals not a rational preference by a majority of the House membership but successful agenda manipulation by House managers. This Article brackets that concern and, rightly or wrongly, follows the lead of political theory in treating House rules and structures as reflecting, more or less, the aggregated preferences of the House membership.

1. Three Theories of the Closed Rule

Three general theories—distributive, informational, and partisan—explain the institutional structure of Congress, and all three specifically account for the closed rule. 222 The theories normally refer to “restrictive rules,” the term often used by political scientists to describe any rule that is neither open nor modified open. See supra note 73. The term “restrictive rules” maps onto what this Article calls “closed rules,” “effectively closed rules,” and “limiting rules.” As such, these theories’ explanations of restrictive rules apply, a fortiori, to closed and effectively closed rules. Although often presented as competing accounts, cogent analysis suggests that they are better seen as complementary. 223See Shepsle & Weingast, Positive Theories, supra note 89, at 22–23.

a. Distributive Theory

Distributive theory argues that Congress organizes itself to produce legislative benefits, such as pork-barrel spending, valued by constituents. 224 C. Lawrence Evans, Legislative Structure: Rules, Precedents, and Jurisdictions, 24 Leg. Stud. Q. 605, 608–09 (1999). Vote trading can yield gains from trade among members with heterogeneous preferences, but institutional structures are needed to facilitate both the formation and the enforcement of such deals. 225 Shepsle & Weingast, Positive Theories, supra note 89, at 12–13. Distributive theory argues that Congress solves this problem by establishing a system of committees with independent jurisdictional authority over specific policy areas and by granting those committees procedural privileges on the floor. 226 Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; Or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. Pol. Econ. 132, 143–48 (1988); see also Krehbiel, Spatial Models, supra note 91, at 43–44 and 160–64. According to this theory, the House uses the closed rule to protect distributive deals made among its members. 227 David P. Baron, A Noncooperative Theory of Legislative Coalitions, 33 Am. J. Pol. Sci. 1048 (1989) [hereinafter Baron, Noncooperative Theory]; Krehbiel, Spatial Models, supra note 91, at 43–44, 160–64. Distributive theory has also advanced the position that closed rules are more likely to lead to greater inefficiency in distributive legislation; that position, however, is grounded in the counter-intuitive proposition that legislators take into account both the benefits and the costs of distributive legislation. David P. Baron, Majoritarian Incentives, Pork Barrel Programs, and Procedural Control, 35 Am. J. Pol. Sci., 57 (1991) [hereinafter Baron, Majoritarian Incentives]. For a suggestion that distributive theory’s implications for the closed rule may be ambiguous, see Barbara Sinclair, House Special Rules and the Institutional Design Controversy, 19 Leg. Stud. Q. 477, 481 (1994) [hereinafter Sinclair, House Special Rules]. By blocking floor amendments, the House ensures that logrolls and other agreements cannot be undone by floor amendment. Closed rules “deter [a] faction from tempting one of the parties to the original bargain to defect and support a new amendment.” 228 Barry R. Weingast, Fighting Fire with Fire: Amending Activity and Institutional Change in the Postreform Congress, in The Postreform Congress 142, 161 (Roger H. Davidson ed., 1992) [hereinafter Weingast, Fighting Fire]. In short, the closed rule precludes a member’s unilateral repudiation of a deal.

Although other theorists have expressed skepticism, 229See, e.g., Krehbiel, Information, supra note 47, at 247–48. distributive theory offers a striking explanation of particular legislative structures—most notably, the persistence of a robust committee system. Still, there are reasons to question its particular account of the closed rule. 230 Those reasons may or may not justify tagging the account as “[a]t best . . . a chronic hope.” Keith Krehbiel, Restrictive Rules Reconsidered, 41 Am. J. Pol. Sci. 919, 940 (1997) [hereinafter Krehbiel, Restrictive Rules]. Empirical studies generally have failed to support the claim that the House imposes greater restrictions on floor amendments for distributive legislation than for non-distributive legislation. 231Krehbiel, Information, supra note 47, at 173–86; Krehbiel, Restrictive Rules, supra note 230, at 932–40; Bryan W. Marshall, Explaining the Role of Restrictive Rules in the Postreform House, 27 Legis. Stud. Q. 61, 67–78 (2002); Sinclair, House Special Rules, supra note 227, at 484–85. Additionally, as shown in Part II, the House regularly used open rules for appropriations legislation during the 109th and 110th Congresses. Distributive legislation does take other forms, but appropriations measures arguably constitute the paradigmatic form of legislative distributive activity. It is hard to see why, if distributive theory’s account were correct, the House would have considered most appropriations measures during the 109th and 110th Congresses under open rules and few non-appropriations measures under open rules. The objective on those measures appears to have been precisely the opposite of what distributive theory predicts. Rather than shelter those measures from floor amendments that might disturb pre-floor deals, the House seemingly wanted to allow as many members as possible to offer floor amendments and thereby participate in the distribution of federal funds.

b. Informational Theory

Informational theory argues that Congress organizes itself into committees so that the full membership can benefit from committee members’ investments in developing and maintaining policy expertise. 232 This theory is set forth throughout Krehbiel, Information, supra note 47; see also Thomas W. Gilligan & Keith Krehbiel, Organization of Informative Committees by a Rational Legislature, 34 Am. J. Pol. Sci. 531 (1990). This theory stands on two sound assumptions: first, that institutional structures are subject to the general principle of majoritarianism and, second, that legislators work under conditions of uncertainty about the relationships between legislative policy choices and non-legislative outcomes. 233Krehbiel, Information, supra note 47, at 15–20. These two assumptions yield the insight that the House rationally organizes itself to realize informational efficiencies. Thus, the House establishes committees with independent jurisdictions so that the members of those committees will develop policy expertise and will provide policy-specific information to the full House. 234Id. at 66–81; see also Shepsle & Weingast, Positive Theories, supra note 89, at 15–16.

Informational theory accounts for the closed rule as a mechanism by which the House can protect the incentives of its committees to gather and to reveal specialized information. By precluding floor amendments, the House effectively commits not to exploit a committee’s revealed information to the committee’s disadvantage (for example, by amending a measure to strip out provisions conferring disproportionate benefits on the committee members’ constituents). 235Krehbiel, Information, supra note 47, at 90–92, 97–98; see also Thomas W. Gilligan & Keith Krehbiel, Asymmetric Information and Legislative Rules with a Heterogeneous Committee, 33 Am. J. Pol. Sci. 459 (1989); Thomas W. Gilligan & Keith Krehbiel, Collective Decisionmaking and Standing Committees: An Informational Rationale for Restrictive Amendment Procedures, 3 J.L. Econ. & Org. 287 (1987) [hereinafter Gilligan & Krehbiel, Collective Decisionmaking]. This account argues that, “under the closed rule, the committee can, in effect, credibly transmit its private information to the floor actor” such that “neither . . . loses utility from uncertainty.” 236 Krehbiel, Spatial Models, supra note 91, at 305. Thus, the informational theory of legislative organization accounts for the closed rule as a “device[] . . . chosen by the House to get the most out of its committees.” 237Krehbiel, Information, supra note 47, at 191.

There are reasons to question both the formal modeling of informational theory and the strength of its empirical support. 238 For example, informational theory counterfactually assumes that the floor decides between a closed rule and an open rule before a committee reports a measure. Gilligan & Krehbiel, Collective Decisionmaking, supra note 235, at 300. For additional criticism of the formal model, see David P. Baron, Legislative Organization with Informational Committees, 44 Am. J. Pol. Sci. 485 (2000); Krishna & Morgan, supra note 118; Shepsle & Weingast, Positive Theories, supra note 89, at 24–25. For criticism of the empirical support, see Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. Pol. 25, 35–41 (1996); Marshall, supra note 231, at 67–78; Sinclair, House Special Rules, supra note 227, at 484–85. For counterarguments on the empirical point, see Krehbiel, Restrictive Rules, supra note 230. For the original empirical results supporting the theory’s explanation of the closed rule, see Krehbiel, Information, supra note 47, at 173–91. Additionally, the precise relationship of informational theory to distributive theory has been disputed. 239 Gilligan & Krehbiel, Collective Decisionmaking, supra note 235, at 328; Shepsle & Weingast, Positive Theories, supra note 89, at 25–26. Nonetheless, the apparent power of the theory to explain the closed rule is impressive: informational theory acknowledges that the closed rule allows the committees of jurisdiction to exploit protection from floor amendments for their own advantage but simultaneously demonstrates that the full House rationally could judge itself better off with the closed rule than without it.

  • That said, the use of the closed rule during the 109th and 110th Congresses raises several points about this account. The original empirical tests supporting the account used data from the 98th and the 99th Congresses (which met from 1983 to 1987), and the tests distinguished only between open rules and “restrictive rules”—that is, rules that were neither open nor modified open. 240Krehbiel, Information, supra note 47, at 167–68. During the 98th and 99th Congresses, more than half the special rules in the House were open rules, and almost all of the remaining ones were restrictive. 241Bach & Smith, supra note 101, at 51. The remaining special rules did not address floor amendments. Id. In the 109th and 110th Congresses, by contrast, only 16% and 12% (respectively) of the special rules were open rules, and the remaining 84% and 88% (respectively) were rules that would have been considered restrictive under informational theory. 242 Mapping Krehbiel’s distinction between open and restrictive rules onto the terms used in this Article, the original empirical tests would be said to have separated “open rules” (as used in this Article) from all “closed,” “effectively closed,” and “limiting” rules (as used in this Article). Other studies on the closed rule present the same methodological issue. See, e.g., Marshall, supra note 231, at 80; Sinclair, House Special Rules, supra note 227, at 478. There is at least a question, then, about whether the results obtained in the original empirical tests, using data in which fewer than half the special rules were restrictive, would still be obtained using data from the 109th and 110th Congresses, in which close to nine out of ten special rules were restrictive. 243 For example, would new testing confirm that, as implied by informational theory, Krehbiel, Information, supra note 47, at 165, the committees of jurisdiction in the 109th and 110th Congresses were significantly more specialized and heterogeneous than were the committees of jurisdiction in the 98th and 99th Congresses?

Intuitively, the experience of the closed rule in the 109th and 110th Congresses suggests that informational theory’s account may indeed be correct. The basic insight of the account is that the House uses closed rules to encourage committees to develop and divulge specialized policy information. Legal scholars certainly can appreciate that federal statutory law has become more complex over the last two decades and that the complexity reflects increasingly intricate and sophisticated policy considerations. It may be, then, that the marked movement away from open rules since the 1980s reveals that the House has behaved as informational theory generally predicts: With a greater need for policy expertise in discharging its legislative function, the House has expanded the incentives for committees to invest in that expertise and to bring it to bear on their work product by expanding the use of the closed rule.

But informational theory’s explanation of the closed rule does not always fit. In the 109th and 110th Congresses, for example, managers brought several straightforward measures to the floor under closed rules. For example, managers used closed rules to stage up-or-down votes on withdrawing U.S. troops from Iraq, amending the Constitution to ban flag desecration, allowing federal funding of stem-cell research, and other measures to which the committee-expertise story seems orthogonal. 244See Part II.B, supra. The policy parameters of those highly charged issues were well known by the full House, and committee specialization likely added little to the full membership’s understanding and deliberation. It seems very doubtful that either managers or the rank and file chose to use closed rules for those measures as a way of encouraging the committees of jurisdiction to reveal important information to the floor. Rather, other considerations must have driven the selection of those closed rules.

c. Partisan Theory

Partisan theory argues that the central principle of legislative organization is the advantage of the political party. 245 Evans, supra note 224, at 609. Parties provide a solution to collective-action problems confronting individual legislators who must form coalitions to advance their policy preferences. 246Cox & McCubbins, Setting the Agenda, supra note 9, at 17–18; see also Gary W. Cox & Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (2d ed. 2007) [hereinafter Cox & McCubbins, Legislative Leviathan]. A different version of partisan theory, conditional party government (which argues that party control in the legislature is contingent and generally increases as both the parties become more homogeneous and the party medians become more distant), has slightly different implications for the closed rule. See generally Finocchiaro & Rohde, supra note 83 (explaining implications of conditional-party-government thesis for closed rule). With a membership having preferences that are more homogeneous than the legislature as a whole, each party constitutes a relatively stable coalition. 247Cox & McCubbins, Legislative Leviathan, supra note 246, at 99–125; Cox & McCubbins, Setting the Agenda, supra note 9, at 19, 23; Shepsle & Weingast, Positive Theories, supra note 89, at 18. Importantly, the majority party promotes the policy preferences of its membership not by controlling votes but by controlling the legislative agenda. 248Cox & McCubbins, Setting the Agenda, supra note 9, at 6. Specifically, the majority party cartelizes agenda control among senior party members and exercises both negative agenda control—blocking measures that divide the party—and positive agenda control—promoting measures favored by a majority within the party. 249Id. at 9, 19–20, 24. Partisan theory therefore accounts for the closed rule as an instrument used by cartel members to exercise negative and positive agenda control in the interests of the party. 250Id. at 125, 146. Under partisan theory, the closed rule is a “device[] the majority party leadership uses to advance the goals of its membership.” 251 Sinclair, House Special Rules, supra note 227, at 483. Stated more forcefully, the closed rule is a “tool[] of the majority party . . . deployed to trample on minority rights” 252Krehbiel, Information, supra note 47, at 167. or simply a “weapon” that the majority party uses to disenfranchise the minority party on the floor. 253Cox & McCubbins, Setting the Agenda, supra note 9, at 126. For related arguments that the closed rule is used by the majority party for its own advantage, see Bach & Smith, supra note 101, at 5; Marshall, supra note 131, at 25–45, 61–85; David W. Rohde, Parties and Leaders in the Postreform House 102–03, 109 (1991); Sinclair, Unorthodox Lawmaking, supra note 15, at 30, 42, 280. Certainly members of the minority party have long understood the disempowering effect that the closed rule has on them, and they regularly complain that the closed rule effectively locks them out of the legislative process. See supra notes 12–18.

Unlike distributive and informational theory, partisan theory expressly accounts for the high salience of political parties in Congress and credibly explains how and why party members form or reform legislative processes for their own advantage. Perhaps because of this intuitive appeal, partisan theory’s explanation of the closed rule has been characterized as the “conventional wisdom.” 254 Keith Krehbiel, Rejoinder to ‘Sense and Sensibility, 41 Am. J. Pol. Sci. 958, 958 (1997). All the same, there are reasons to question partisan theory’s account. As with distributive theory and informational theory, the empirical evidence for partisan theory’s explanation of the closed rule is contested. 255 For evidence supporting this explanation, see Cox & McCubbins, Setting the Agenda, supra note 9, Finocchiaro & Rohde, supra note 83, at 44–55; Sinclair, House Special Rules, supra note 227, at 485–86; Douglas Dion & John D. Huber, Sense and Sensibility: The Role of Rules, 41 J. Pol. Sci. 945, 946–56 (1997); and Dion & Huber, supra note 238, at 35–41. (Although Dion and Huber do not specifically tag their model as fitting within partisan theory, it is rightly regarded as such. See Evans, supra note 224, at 628.) For evidence against partisan theory’s explanation of the closed rule, see Krehbiel, Restrictive Rules, supra note 230, at 932–36. Even if the existing evidence in its favor is accepted, the same question arises here that arises with respect to the empirical evidence for informational theory: would partisan theory correctly predict the low incidence of open rules in the 109th Congress (only 16% of all special rules) and the 110th Congress (only 12% of all special rules)? It may be that the agenda-cartelizing behavior found by partisan theory in prior Congresses was even stronger among the Republicans of the 109th Congress and the Democrats of the 110th Congress than it had been in the past, or it may be that the partisan theory can explain rule choice for earlier periods but not for more recent periods. This question will remain open until new empirical studies are conducted.

More importantly, there is a basic anomaly in partisan theory’s account of the closed rule. If indeed the majority party uses its cartelized agenda control to advance its own interests, it seems very odd that the majority party employs the closed rule rather than overtly partisan limiting rules. The closed rule binds all members of the rank and file equally, allowing amendments neither from the minority party nor from the rank and file of the majority party. One would expect that a majority party intent on advancing the policy objectives of the majority party qua majority party and on blocking the floor activity of the minority party qua minority party would use limiting rules that selectively disallow amendments offered by the minority party and that selectively allow those offered by the majority party. But neither Republicans nor Democrats pursued that approach during the 109th or 110th Congress. Instead, as shown in Part II, both Republicans and Democrats had a clear preference for the closed rule. When they did use limiting rules, both Republicans and Democrats readily blocked more than half the amendments submitted by members of their own party along with most amendments submitted by members of the other party. It appears that the choice to use the closed rule must be informed by considerations beyond simply promoting the legislative agenda of the majority party.

2. The Closed Rule as Managerial Agenda Control

None of the three accounts of the closed rule presented by political theory offers a precise fit. Distributive theory’s explanation stumbles when it confronts the high incidence of open rules for appropriations measures; informational theory does not explain the use of the closed rule for technically simple but politically charged measures; and partisan theory cannot account for the strong intraparty constraints imposed by the closed rule. Yet even if none of the three accounts seems entirely right, none seems entirely wrong either. Collectively, they suggest that the closed rule can be understood as a generically managerial tool that managers at times use to serve distributive, informational, or partisan objectives and at other times use for other purposes.

Thus, the explanations of the closed rule provided by distributive theory, informational theory, and partisan theory can be expanded and generalized into an alternative thesis: the closed rule constitutes a mechanism of agenda control by House managers in their broad capacity as managers. On this account, the point of the closed rule is not specifically to enforce logrolls, to enhance the informational efficiency of the committee system, or to promote the narrow interests of the majority party. Rather, the point of the closed rule is to strengthen general managerial control over the floor agenda and thereby to provide for a House that is orderly, predictable, and productive. Certainly the closed rule has many of the effects that the distributive, informational, and partisan theories ascribe to it. But the argument here is that, however important, those are second-order consequences made possible by the exercise of effective and competent managerial agenda control. In other words, the closed rule is better understood not as narrowly or exclusively distributive, informational, or partisan. Rather, it is better understood as broadly managerial.

This thesis is grounded in, but is nonetheless more expansive than, the explanation of the closed rule offered by Stanley Bach and Steven Smith. Bach and Smith argue that managers in the House increased their use of non-open rules to counter the rise of disorder in the House after the reforms of the 1970s. 256Bach & Smith, supra note 101, at 69; see also Evans, supra note 224, at 627; Weingast, Fighting Fire, supra note 228, at 143. However, Bach and Smith also regard the development as distinctly (although not exclusively) partisan. 257Bach & Smith, supra note 101, at 5, 70–71, 112; see also Evans, supra note 224, at 627. For their argument about the non-exclusivity of partisan motivations, see Bach & Smith, supra note 101, at 69, 82. The same point applies to the account offered by Barbara Sinclair. Although she sees the closed rule as embedded within the agency relationships of the House, she nonetheless specifically associates the closed rule with partisanship. 258 Sinclair, House Special Rules, supra note 227, at 482–83. As explained further in this section, the partisan effects of the closed rule should be seen as derivative: the point of the closed rule is to manage the House, not to roll the minority. In the final analysis, the closed rule takes nothing from the minority that the minority otherwise would have in a majoritarian institution.

The need for a certain level of managerial agenda control in the House is obvious. The Constitution establishes a state of nature under which all House members have equal status; 259See Sinclair, Legislators, supra note 30, at 13 (“In a preorganizational legislative ‘state of nature,’ the membership as a whole possess all decision-making authority.”). Section 5 of Article I simply states that the House (like the Senate) “may determine the Rules of its Proceedings.” U.S. Const. art. I, § 5. Thus, the constitutional starting point is that the House has the power to determine how it will exercise its share of the legislative authority granted under Article I. Consistent with this, the full membership of the House votes on the standing rules at the beginning of each Congress, with each member casting one vote equally weighted with that of every other member. although it provides for a speaker and other officers, the Constitution does not confer any specific authority on them. 260 U.S. Const. art. I, § 5. As a decision-making institution with 435 coequal members, the House must have an internal structure for its proceedings because the absence of such a structure would make the House inefficient at best and completely ineffective at worst. 261 Even groups nominally committed to radical egalitarianism eventually figure that point out. See, e.g., Geoffrey Hosking, The First Socialist Society: A History of the Soviet Union from Within 39 (1992) (describing centralization of authority within 1917 Petrograd Soviet); Murray Morgan, Skid Road: An Informal Portrait of Seattle 201 (1982) (describing centralization of authority within Seattle labor unions’ 1919 general strike committee). To solve this problem and to create internal order, House members maintain a system of agency relationships under which rank-and-file members delegate important responsibilities and powers to managers. These agency relationships inevitably confer a measure of agenda control on managers. The question answered by the closed rule is how great that measure should be.

The current ascendancy of the closed rule represents the culmination of a movement, begun in the late 1970s, both to increase the agenda control of House managers and to divide that control between the committee chairs and leadership. Before the reforms of the early 1970s, most special rules were open. 262Sinclair, Unorthodox Lawmaking, supra note 15, at 122–24. Even so, floor-amending activity was modest, and House managers normally obtained the voting outcomes that they anticipated through the less formal agenda-control mechanisms provided by a powerful committee system. 263Smith, supra note 30, at 31; Weingast, Floor Behavior, supra note 95, at 797–98. The reforms of the 1970s enabled the rank and file to reclaim discretionary legislative authority that had long been delegated to committee chairs, and, for several years following the reforms, they used that authority to exercise direct control over the House floor agenda. 264Smith, supra note 30, at 24–28. Reformers associated the closed rule, which was used sparingly, with the excessive power of committee chairs (most notably, the chair of the Ways and Means Committee), and the Democratic caucus in 1973 put sharp restrictions on the use of the closed rule. Rules Committee History, supra note 11, at 216. The rank and file substantially increased their floor-amendment activity, 265Sinclair, Legislators, supra note 30, at 48; Smith, supra note 30, at 28–35. and the result was a markedly less orderly, less predictable, and less productive House. Measures brought to the floor often bogged down in numerous amendments; floor time for debate and voting increased; and ad hoc minority coalitions were able to delay and, occasionally, prevent passage of measures to which they objected. 266Bach & Smith, supra note 101, at 30–31; Sinclair, Legislators, supra note 30, at 77; Smith, supra note 30, at 35–40. After securing the institutional reforms that they had thought would improve the House, the rank and file discovered that they were unable to discipline themselves. Frustrations with the disarray led the rank and file in 1979 to ask House managers to exercise greater authority over the floor. 267Bach & Smith, supra note 101, at 31, 33; Sinclair, Legislators, supra note 30, at 78; Smith, supra note 30, at 40–45.

The first response of managers was to move only a half step away from the open amendment process then prevailing in the House. Managers began to replace open rules with limiting rules that structured and bounded—but did not preclude—floor amendments. 268Bach & Smith, supra note 101, at 50–74. The rank and file endorsed this initially limited assertion of managerial control over the floor agenda. 269Smith, supra note 30, at 74–83. As managers became bolder and tested the limits of floor support during the 1980s and the 1990s, they found that the rank and file were willing to allow them greater control over the House agenda, including tolerance for regular use of the closed rule. Within three decades, then, the position occupied by the rank and file on agenda control became almost the polar opposite of what it had been. During the 1970s, the floor insisted on setting its own agenda and allowing almost unlimited amending activity; now, the rank and file delegate extensive discretionary control over the floor agenda to House managers and allow the managers to block amendments on half the controversial measures brought to the full House. The current concentration of managerial power no doubt will persist until the rank and file reassert self-governance on the floor.

The closed rule thus represents a rational (but nonetheless contingent) extension of the underlying agency relationships between the rank and file and House managers. Even without the closed rule, managers hold substantial agenda-setting power. By controlling the decisions of the Rules Committee, the speaker and the other members of leadership can refuse to bring an unprivileged measure to the floor, grant privileged status to an otherwise unprivileged measure, waive points of order that might otherwise derail a measure on the floor, and determine the time allowed for debate on a measure. 270Sinclair, Unorthodox Lawmaking, supra note 15, at 25–35. The committee system allows the committees of jurisdiction, particularly their chairs, 271Oleszek, supra note 24, at 90–93; Kenneth A. Shepsle, Congress Is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 245–56 (1992). to determine the policy content of whatever measures the committees report. 272Oleszek, supra note 24, at 81–90. The additional authority to use the closed rule expands the power held by these managers. By causing the Rules Committee to report a closed rule, the speaker and other members of leadership determine that the version of a measure approved by them will be put to the full House in an up-or-down vote, subject only to the requirement that the rank and file ratify the rule. The closed rule magnifies the authority of committee chairs by sharply increasing the prospects that the policy decisions made within the reporting committees will be the only policy decisions on the matter brought to a floor vote. 273Smith, supra note 30, at 188–95. Even so, the committees may not have sufficient power to roll the floor median. See Krehbiel, Spatial Models, supra note 91, at 280–81. Also as one game-theoretic analysis argues, because the House votes on the special rule after the committee proposes a measure, “the outcome that would occur under the open rule acts as a constraint on the degree to which the committee can bias the [measure] toward its preferred outcome.” Jeffrey S. Banks, Committee Proposals and Special Rules, 96 Proc. Nat’l Acad. Sci. 8295 (1999). Taking a different approach, Jacob Gersen and Eric Posner argue that “delay rules” (such as multiple-reading requirements) can be understood in part as weakening the agenda control otherwise exercised by committee chairs; their point is that delay rules allow the rank and file to review the work of committees and organize floor opposition. Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543, 568–69 (2007). But “delay rules” (as well as many of the other legislative rules that Gersen and Posner describe) are routinely waived by special rules. Although Gersen and Posner acknowledge the possibility that Congress might waive its own timing rules, they argue (apparently without having examined legislative practice) that waiver is unlikely because it “can be costly in terms of reputation.” Id. at 556. That simply mischaracterizes the practice in the contemporary House.

Although the explanation offered here—that the closed rule constitutes a mechanism of general managerial agenda control—bears a resemblance to the explanation provided by partisan theory, the two accounts should be distinguished. According to partisan theory, the closed rule is an instrument for advancing the legislative program of the majority party and for disenfranchising the minority party. The rank and file of the majority party give the leadership of the majority party the power, as the rank and file’s agent, to use the closed rule against the minority party, and the closed rule therefore operates to shift power from the minority to the majority. By contrast, the argument here is that the closed rule operates principally to shift power from the floor—where all members have equal status under the Constitution—to House managers as agents of the floor. By including the closed rule within the authority delegated to managers, the rank and file enlarge the power of managers at the expense not just of the minority but of the rank and file as a whole. Within the strictly majoritarian setting of the House, the point of the closed rule is as much to curb the amendment activity of the majority rank and file as it is to curb the amendment activity of the minority.

Partisan theory accounts for the greater use of the closed rule in the contemporary Congress as a function of increasing homogeneity among majority-party members. More homogeneity, partisan theory argues, implies less divergence of positions among members of the majority party and, accordingly, greater tolerance by the majority rank-and-file for use of the closed rule. But the record of the 109th and 110th Congresses indicates otherwise. As shown above, even the limiting rules in those Congresses disallowed more than half the amendments offered by members of the majority party. 274See Part II.C.2. If homogeneity itself curbed floor amendment activity as well as partisan theory assumes it does, there should have been many fewer amendments submitted to the Rules Committee by the majority rank and file, and it should have been possible for managers to permit many more of those submitted amendments to be offered on the floor.

In fact, the shift by managers over the last twenty years from heavy reliance on limiting rules to heavy reliance on closed rules probably has burdened the rank and file of the majority more than it has burdened the minority. Over 40% of the limiting rules of the late 1970s and the early 1980s permitted amendments exclusively from the rank and file of the majority. 275Bach & Smith, supra note 101, at 70–71. Thus, the amendment activity of the majority was much less constrained during that period than was the amendment activity of the minority. By contrast, the closed rules used so frequently during the 109th and 110th Congresses allowed no amendments from either the majority or the minority, thereby putting greater restraints on the majority rank and file (relative to prior practice) than on the minority. 276 Arguably, the minority is better off under a closed rule than the majority rank and file. Even though a closed rule blocks all floor amendments, the minority may offer a motion to recommit the underlying measure with instructions. See supra note 71. In other words, the status quo in the 1970s and the 1980s, which depended heavily on limiting rules, effectively bridled the amendment activity of the minority; the movement toward the closed rule in the 1990s and the 2000s bridled the amendment activity of the majority rank and file as well.

Certainly House managers use the closed rule for partisan purposes; nonetheless, the closed rule is inherently managerial, not partisan. Even a House without parties (perhaps legislating for the faction-free republic envisioned by Madison) would need managers empowered with a certain level of agenda control to impose order. Such a House rationally could grant its managers the authority to use the closed rule; the question is only one of degree. Although the minority members in the House generally feel the effects of the closed rule more sharply than do the majority rank and file, that does not render the closed rule inherently partisan. When used, it binds all members of the rank and file equally. 277See, e.g., Rohde, supra note 253, at 112–13. Put differently, the closed rule is fundamentally a mechanism for defining the relationship of the rank and file to their managers rather than one for defining the relationship of the majority party to the minority party.

3. Managerial Agenda Control and the Rank and File

Granting managers the power to use the closed rule regularly requires the rank and file to surrender both their collective authority to manage the floor agenda directly and their individual power to offer amendments, but the rank and file derive compensating benefits from the arrangement. 278 Krehbiel, Restrictive Rules, supra note 230, at 942. Most importantly, the rank and file ensure that the House as a whole is more orderly, predictable, and productive than it would be without the closed rule. In certain cases, this may enable individual members to capture gains from trade, just as distributive theory suggests. Furthermore, it seems highly likely that, as indicated by informational theory, the closed rule encourages the committees of jurisdiction to invest in the acquisition of policy expertise and to report measures informed by that policy expertise. By strengthening the sovereignty of the separate committees and their chairs, the closed rule allows the committees to act as micro-legislatures that produce the policies they judge best, subject only to the possibility of a veto by the full chamber.

That the full House derives genuine advantages from the consolidation of agenda control among managers explains the rank and file’s tendency to ratify closed rules in almost all cases. 279 Other explanations are possible as well, of course. It may be that managers have significant institutional strength and that individual members are hesitant to challenge them when voting on closed rules. See, e.g., Sinclair, Legislators, supra note 30, at 136–37, 156. Another possibility is that managers shrewdly calculate exactly how much agenda control they can exercise without suffering a reversal on the floor and then calibrate their decisions to use the closed rule accordingly. See, e.g., id. Yet another possibility is that managers effectively make procedural votes a point of party discipline—a possibility that is more likely to the extent that votes on procedure have lower salience for constituents than do votes on underlying measures. Arnold, supra note 9, at 121, 272; Cox & McCubbins, Setting the Agenda, supra note 9, at 29. But those explanations simply move the relevant question one step back: as a majoritarian institution, the full House always has the authority to curb its managers, and it rationally would do so if that were advantageous. That point has eluded certain political scientists who maintain that legislative agenda control in Congress likely “exist[s] either in very limited forms or not at all.” 280Gerald S. Strom, The Logic of Lawmaking: A Spatial Theory Approach 83–85 (1990). Mackie makes the same point in his argument that Riker overstated the importance and incidence of agenda control in Congress. Mackie, supra note 117, at 166–68. Their argument is straightforward. Manipulations of the legislative agenda by managers—for example, through the closed rule—generally move policy outcomes away from the floor median and toward the managerial median. Therefore, the rank and file, in setting the institutional structure of the House, should not rationally confer on managers discretionary authority over the House floor agenda because the rank and file should not institutionalize arrangements that generally make themselves worse off.

But that argument ignores entirely the rational preference of the rank and file for order, predictability, and productivity. By endorsing managerial power to use the closed rule, the rank and file trade off non-manipulated floor agendas (which, presumably, would produce more substantive outcomes closer to the floor median) against well ordered floor proceedings (which likely produce fewer substantive outcomes closer to the floor median). Legislators may rationally prefer order, predictability, and productivity to chaos on the floor, even if they fully understand and anticipate that delegating discretionary agenda control to managers facilitates managerial agenda manipulation. 281 David P. Baron & John A. Ferejohn, Bargaining in Legislatures, 83 Am. Pol. Sci. Rev. 1181, 1198–1200 (1989) (discussing reasons the legislature might choose to adopt an open or closed rule). In any event, the reserved authority to reject a closed rule for any particular measure ensures that the rank and file do not leave themselves entirely unprotected against managerial agenda manipulation. 282Cf. Kenneth A. Shepsle, Institutional Equilibrium and Equilibrium Institutions, in Political Science: The Science of Politics 51, 72–73 (Herbert F. Weisberg ed., 1986) (“[N]ot knowing how conflicts will shape up, now or in the future, [political agents] develop mechanisms which enable positive collective action, on the one hand, but which possess aspects of insurance against reneging, opportunism, and other adverse circumstances, on the other hand.”).

B. Development of Substantive Policy

Normative assessment of the closed rule must take into account how its use may affect the substantive policy of measures passed by the House. Most prominently, the closed rule enables managers to move measures toward their own policy preferences; that may or may not be objectionable, depending on one’s view about those preferences. 283 This point should not be misconstrued. The claims made in this Article are fundamentally agnostic about the formation of managerial policy preferences. That is, the claims here do not turn on whether managers come to a measure with strong policy preferences of their own rather than with the intent of simply aggregating the policy preferences of the rank and file. The important point is that the agency relationships in the House commit substantial discretion to managers and allow them to exercise outsized influence over what policy positions are passed by the House. Even if managers see their job as simply aggregating the rank and file’s preferences into a legislative product, the agenda-setting power allows the managers to determine how the rank and file’s preferences will be aggregated and enables the managers to ensure that the aggregated preferences (as determined by the managers) will have substantial advantages on the floor. That claim is distinct from any claim that the managers necessarily privilege their own policy preferences over the policy preferences of the rank and file. Stated differently, one can posit three sets of preferences: (1) the aggregate policy preferences of the rank and file, as determined by unmanaged floor voting; (2) the aggregate policy preferences of the rank and file, as determined by managers; and (3) the policy preferences of managers. Existing agency relationships and institutional structures preclude the preferences in (1) from controlling floor outcomes. The claim made here is that the agency relationships—as strengthened by the closed rule—strongly privilege the preferences in (2). Ultimately, the argument is indifferent as to whether the preferences in (2) do or do not coincide with the preferences in (3) in all or even very many cases. Apart from that, the closed rule has other important effects that may be often or consistently undesirable. First, it reinforces the tendency of the committee system to produce fragmented policy and redundant legislation. Second, it facilitates capture of the legislative process by interest groups and by agents of the Executive Branch. Third, it polarizes the policy options offered on the floor, thereby impeding bipartisan cooperation and compromise. Each of these effects is considered below.

1. Legislative Fragmentation and Redundancy

The House committee system creates strong, largely autonomous committees with separate but often overlapping jurisdictions. 284See generally David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction (1997). That, in turn, generally leads to fragmentation of substantive policy and redundancy in federal statutory law. Committees of jurisdiction can pursue their own policy preferences while disregarding the preferences of other committees, and separate committees can report measures that fail to produce a coherent whole. In certain cases, two or more committees with overlapping jurisdiction report measures that yield duplicative or even inconsistent statutes; in other cases, the committees report measures on a single subject that leave significant gaps in federal law. 285 For examples involving tax and public welfare policy, see Nancy Staudt, Redundant Tax and Spending Programs, 100 Nw. U. L. Rev. 1197, 1204–08 (2006) (detailing how different congressional committees create conflicting programs aimed at alleviating poverty) and David A. Weisbach, Tax Expenditures, Principal–Agent Problems, and Redundancy, 84 Wash U. L. Rev. 1823, 1830–36 (2006) (providing examples of redundancy in tax and spending programs). Whatever may be the advantages and disadvantages of such legislative fragmentation and redundancy, 286See Weisbach, supra note 285, at 1843–49 (discussing benefits of redundancy). the closed rule produces more of both.

Fragmentation and redundancy can be seen throughout federal legislation. 287 Weingast, Fighting Fire, supra note 228, at 162. Federal poverty relief, for example, is pursued through several non-coordinated programs. 288 Staudt, supra note 285, at 1197–99. Three of those programs—the Supplemental Nutrition Assistance Program (commonly known as food stamps), 289 7 U.S.C. §§ 2011–2036 (2006). Medicaid, 290 42 U.S.C. §§ 1396–1396v (2006). and the earned income tax credit 291 26 U.S.C. § 32 (2006).—have entirely separate rules for eligibility and assistance and are administered by three separate cabinet departments—the Department of Agriculture (food stamps), the Department of Health and Human Services (Medicaid), and the Treasury Department (the earned income tax credit). Rather than set up a comprehensive program providing the poor with food, medical care, and a cash subsidy for work, Congress has structured each of these three programs almost as though the other two did not exist. The redundancy can be attributed in part to the overlapping jurisdictional interests of different legislative committees. By dividing federal poverty relief into three distinct programs, three separate House committees of jurisdiction—Agriculture, Energy and Commerce, and Ways and Means—can exercise independent control over it. 292Standing Rules, supra note 22, r. X. The Appropriations and Budget Committees also have jurisdiction (although less directly). Id. For a political-economy argument that committee jurisdiction entrenches legislative redundancy, see Staudt, supra note 285, at 1214–22. Similarly, Congress fragments federal education policy, setting up programs administered and funded by the Department of Education 293See, e.g., 20 U.S.C. §§ 1070a to 1070a-1 (2006) (Federal Pell Grant program). but also providing an elaborate system of education-related tax credits, deductions, and exclusions administered by the Treasury Department. 294See, e.g., 26 U.S.C. § 25A (2006) (tax credit for certain education expenses); id. § 127 (tax exclusion for certain employer-provided education assistance); id. § 221 (tax deduction for interest on certain education loans). Congress recently took a small step toward addressing the fragmentation of federal education policy. Section 1004(f)(1)(A) of the American Recovery and Reinvestment Act of 2009 requires the Secretary of the Treasury and the Secretary of Education to “study how to coordinate the credit allowed under section 25A of the Internal Revenue Code of 1986 with the Federal Pell Grant program under section 401 of the Higher Education Act of 1965 to maximize their effectiveness at promoting college affordability.” Pub. L. No. 111-5, § 1004(f)(1)(A), 123 Stat. 115, 315 (2009). This confers jurisdictional power on both the Education and Labor Committee and the Ways and Means Committee. 295Standing Rules, supra note 22, r. X. Again, both the Appropriations and Budget Committees also have jurisdiction. Id. In these and many other areas, policy fragmentation and statutory redundancy allow multiple committees to claim legislative sovereignty over a single subject and to enjoy the power and prestige that attend oversight of federal programs and of the agencies that administer those programs. 296 Consider the following example of the benefits to legislators. When asked about his aggressive efforts to raise campaign contributions from businesses regulated by his committee, Representative Barney Frank, the chair of the Financial Services Committee, flatly replied: “Financial services companies are inclined to give to me because I’m chairman of the committee important to their interests.” Jeffrey H. Birnbaum & John Solomon, Democrats Offer Up Chairmen for Donors; Party’s Campaigns Had Faulted GOP for “Selling Access,Wash. Post, Feb. 24, 2007, at A1. Obviously, fragmentation increases the number of committee chairs who can seek contributions from the same interest groups.

The closed rule promotes legislative fragmentation by reinforcing the autonomy of committees and the managerial power of committee chairs. 297 Positive political theory supports this point. See Arthur T. Denzau & Robert J. MacKay, Gatekeeping and Monopoly Power of Committees: An Analysis of Sincere and Sophisticated Voting Behavior, 27 Am. J. Pol. Sci. 740 (1983); see also Krehbiel, Spatial Models, supra note 91, at 306; Krishna & Morgan, supra note 118, at 436; Weingast, Fighting Fire, supra note 228, at 161. A measure brought to the floor under a closed rule generally reflects the policy preferences of the reporting committee and its chair, and other members who do not serve on the reporting committee cannot offer floor amendments to harmonize the measure with existing law or with the pending work of other committees. For example, the Ways and Means Committee might report a measure providing tax credits for certain educational expenses, and those tax credits might duplicate direct spending programs administered by the Department of Education. If the measure were brought to the floor under an open rule, a member (such as the chair of the Education and Labor Committee) could offer a floor amendment that would reduce or eliminate the duplication. But if the measure is brought up under a closed rule, no such amendment can be offered. This represents a downside of the effect, identified by distributive theory and informational theory, that the closed rule has in strengthening the committee system.

In theory, House leadership could reduce legislative fragmentation and redundancy by revising measures between committee reporting and floor consideration. A committee chair normally seeks a special rule for a measure reported by the committee, either to make the otherwise unprivileged measure in order or to protect the measure from potentially fatal points of order. 298Oleszek, supra note 24, at 125–35. Thus, leadership, acting through the Rules Committee, typically has leverage over the reporting committee and can demand changes to the measure before allowing the Rules Committee to report a rule for it. For example, when three separate committees—Education and Labor, Energy and Commerce, and Ways and Means—reported different versions of a measure for health-care reform in the summer of 2009, leadership merged the three measures into one before having the Rules Committee report an effectively closed rule for it. 299 H.R. Res. 903, 111th Cong. (2009).

But leadership generally modifies measures in this way only when different committees, following multiple referral, report different versions of a single measure. 300See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 21 (describing leadership modification following multiple referral). Fragmentation and redundancy are less likely to be mitigated when committees report entirely separate measures. The Agriculture Committee, for example, might authorize a subsidy program to increase the amount of corn produced for ethanol, and the Ways and Means Committee might later create a tax credit for ethanol production that duplicates the subsidy. Even if leadership believed that, ideally, the federal government should provide corn farmers with only one subsidy, leadership would be unlikely to demand that the Ways and Means Committee withdraw the proposed ethanol tax credit. Leadership might not have the expertise to determine the extent to which the tax credit overlaps with the existing subsidy; more importantly, leadership might see little point in provoking the Ways and Means chair on a measure that does not, strictly speaking, require reconciliation with another measure. Such a move would rightly be understood by the Ways and Means chair as an encroachment on the committee’s jurisdiction, and the chair almost certainly would fight leadership over the demand. 301 Although, in this example, the chair of the Agriculture Committee might bring the policy duplication or discontinuity to the attention of the Rules Committee by submitting a perfecting amendment to the Ways and Means measure when that measure is under review, the chair of the Agriculture Committee may rationally determine that her long-term interests are better served by allowing the Ways and Means Committee to do as it pleases so that the Ways and Means Committee will not interfere with her own exercise of jurisdiction in the future.

2. Capture of the Legislative Process

The closed rule also facilitates capture of the legislative process by interest groups and by officials and agencies of the Executive Branch. As recognized by distributive theory and informational theory, the closed rule strengthens House committees, increasing the likelihood that a measure passed by the House will reflect the policy preferences of whichever committee has jurisdiction over the measure. 302See, e.g., Denzau & MacKay, supra note 297, at 759 (“Under the closed rule, . . . more sophisticated committee behavior, based on compromise and a careful crafting of committee bills, is shown to move legislative outcomes closer to the committee’s preferred outcome.”). It also reduces the number of House members exercising direct control over the policy content of the measure. This allows interest groups and Executive Branch agents to form stable, long-term relationships with committee chairs and other managers, and it reduces the chance that any deal struck with those legislators will unravel on the floor.

Legislators often rely on outside parties for information about matters of legislative interest. 303Kay Lehman Schlozman & John T. Tierney, Organized Interests and American Democracy 297–300 (1986). Even though committee members and their professional staffs have expertise about the subjects within their jurisdiction, the legislative function is too general for them to acquire and maintain the very detailed information available to interest groups and Executive Branch agents. 304Id. at 297. Recognizing this, legislators regularly seek the views of outside parties through formal mechanisms (such as public testimony) and informal mechanisms (such as closed-door meetings), and they often form standing relationships with those parties. 305Id. at 290–94; Sinclair, Legislators, supra note 30, at 236. Whether and to what extent interest groups and Executive Branch agents successfully leverage this access to capture the legislative process depends on the particular terms and characteristics of their dealings with legislators. Nonetheless, with all other aspects of the legislative process held constant, the closed rule should make capture more likely.

Most significantly, the closed rule, in conjunction with the committee system, reduces the number of legislators over whom outside parties must gain and exercise influence. Rather than capture the entire membership—or even a majority of the membership—of the House, outside parties need only capture those managers on whom the closed rule confers discretionary authority to determine the policy content of legislative measures. By channeling legislation through committees, the House effectively channels the lobbying activities of interest groups and Executive Branch agents in the first instance to the relevant committee chairs. Because it prevents floor amendments, the closed rule minimizes the need for outside parties to deal with the floor. Consistent with this, political theory predicts that the size of winning coalitions on the floor will be smaller under a closed rule than under an open rule. 306 Baron, Noncooperative Theory, supra note 227, at 1082.

Assume, for example, that the Department of Agriculture wants Congress to authorize a farm subsidy program that disinterested observers would regard as wasteful. Assume also that, through skillful lobbying, officials from the department have influenced the chair of the Agriculture Committee so that the chair is willing to defer to the department’s opinion on the propriety of the program. The committee reports a measure authorizing the department’s activities, including the subsidy program requested by the department. If the measure comes to the floor under an open rule, members who have not been influenced by the department’s lobbying may remove the program from the measure by means of a floor amendment. To avoid that outcome, the department might have to expand its lobbying to include not only members of the Agriculture Committee but also a coalition on the floor large enough to defeat any unwelcome amendment. By contrast, if the measure comes to the floor under a closed rule, no such amendment would be in order. The subsidy program would stand or fall along with all the other programs authorized by the measure. Rather than having to persuade a majority of the House that the wasteful program should be authorized, under the closed rule the department need only persuade a majority of the committee members to include the program in the authorizing measure.

The combined effect of the committee system and the closed rule is to establish a bilateral monopoly between the managers who make policy decisions in the House and the interest groups and Executive Branch agents affected by those policy decisions. The two sides are locked into dealing with each other in a series of repeated interactions. Interest groups representing farmers and officials from the Department of Agriculture deal primarily with members of the Agriculture Committee; interest groups representing financial institutions and officials from the Securities Exchange Commission deal primarily with members of the Financial Services Committee; and parallel relationships exist between other interest groups and Executive Branch agents and other House committees. Such repeated interactions provide a foundation for long-term cooperation, and, over time, the two sides may be more willing to trade favors to perpetuate a mutually beneficial relationship. 307See, e.g., Douglas G. Baird et al., Game Theory and the Law 172–74 (1994); Michael Taylor, The Possibility of Cooperation 66–67 (1987). Certainly interest groups understand this, and they target their financial contributions to the managers with jurisdiction over matters important to them. 308 For example, as political interest in healthcare reform grew in recent years, “hospitals, insurers, and other medical interest groups hoping to shape the legislation to their advantage” made substantial campaign contributions to the Democratic chair of the Senate Finance Committee. Dan Eggen, Industry Cash Flowed to Drafters of Reform; Key Senator Baucus Is a Leading Recipient, Wash. Post, July 21, 2009, at A1. Although the possibility of long-term cooperation between outside parties and managers does not ensure that the outside parties will be successful in capturing the managers, it does make capture more likely. The closed rule then insulates any deals between outside parties and managers from amendment on the floor. 309 That said, interest groups and Executive Branch agents can still enjoy legislative success under open rules without the need to capture a majority on the floor to the extent that legislators themselves enter into vote-trading arrangements. In other words, the closed rule does not provide a necessary condition for legislative capture.

In certain cases, however, the closed rule may strengthen a committee chair who resists capture by forcing outside parties to accept whatever terms the chair offers. If a committee chair can credibly indicate that she expects a measure to come to the floor under a closed rule, the interest groups or Executive Branch agents with an interest in the measure will have to work with the chair on the chair’s terms. Still, the relationships between legislators on one side and interest groups and Executive Branch agents on the other appear to be characterized more by coziness than by antagonism. Public choice theory recognizes the possibility that legislators will use their positions to extract rents from interest groups, 310See, e.g., J. Mark Ramseyer & Minoru Nakazato, Tax Transitions and the Protection Racket: A Reply to Professors Graetz and Kaplow, 75 Va. L. Rev. 1155 (1989) (arguing that legislators use tax-reform proposals to extract rents from interest groups). but the eagerness of legislators to confer benefits on those groups presents the greater concern. 311See Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 21–33 (1991) (describing the economic theory of legislation). Even when dealing with the Executive Branch, committee chairs have incentives to give officials and agencies more programs, more resources, and more authority. By enlarging the functions in the Executive Branch over which they exercise jurisdiction, committee chairs enhance their own power and prestige within Congress. Positive political theorists confirm that the closed rule enables the committees of jurisdiction to secure disproportionate benefits from the measures they report—benefits that they can confer on favored interest groups and Executive Branch agencies. 312See Denzau & Mackay, supra note 297; Guillaume R. Frechette, et al., Bargaining in Legislatures: An Experimental Investigation of Open Versus Closed Amendment Rules, 97 Am. Pol. Sci. Rev. 221, 230 (2003); Krehbiel, Spatial Models, supra note 91, at 296. Relatedly, political theory argues that distributive legislation will be more inefficient under the closed rule than under the open rule. See generally Baron, Noncooperative Theory, supra note 227; Baron, Majoritarian Incentives, supra note 227. On the whole, then, measures passed by the House with regular use of the closed rule should be more to the liking of interest groups and Executive Branch agents than they otherwise would be. 313 The closed rule may also strengthen the position of the Legislative Branch as a whole relative to the Executive Branch. As argued in Part III.A.2 and Part III.C, the post-reform House leans more toward disorder when it uses the closed rule sparingly, thereby increasing the difficulty for Congress to assert its power vis a vis the Executive. To the extent that the closed rule enhances the inter-branch status and strength of Congress, the Executive Branch might suffer a net loss from the closed rule. However, if agents of the Executive Branch are nonetheless able to capture committee chairs and other managers on a case-by-case basis, any effects the closed rule has in strengthening Congress would only increase the payoff to those agents.

3. Polarization of Policy Options

The closed rule also weakens bipartisan lawmaking. Many observers have noted a general decline in cross-party cooperation and compromise in the contemporary House. The popular press has repeated this observation to the point of banality, and both Republican and Democratic members—including those with long service—report that the legislative process has become more partisan over the last two or three decades. 314See, e.g., Joel Achenbach, Bipartisan? Ha. Congress Creates a Desert Aisle; Left-Right Divide Is Now a “Hyperpartisan” Chasm, Wash. Post, Sept. 5, 2009, at C1. More significantly, political scientists have substantiated the point: close observers of the House have documented an appreciable increase in partisan voting since the legislative reforms of the 1970s. 315Rohde, supra note 253, at 14–15.

Regular use of the closed rule by House managers reinforces that movement away from bipartisan lawmaking, even if not by design. When managers bring a measure to the floor under a closed rule, they offer the rank and file a choice between ratifying the version of the measure that managers have approved and retaining the status quo. By blocking all amendments, the closed rule makes bipartisan compromise on the floor more difficult. The claim here is not that the regular use of the closed rule by House managers accounts for the decline of bipartisan cooperation and compromise in the contemporary House. Rather, the claim is that, with bipartisan lawmaking otherwise in decline, the regular use of the closed rule makes such cooperation and compromise even more difficult. Partisan theory, of course, argues that, because the majority party uses the closed rule for partisan advantage, greater polarization of positions between the parties leads to more closed rules. Whether or not that claim is correct, it is certainly the case that greater use of the closed rule effectively leads to greater polarization of the positions on which legislators are permitted to vote.

C. Effects on Democratic Government

A more serious normative criticism is the charge that the closed rule is inherently undemocratic. One version of this position, echoing the partisan theory account, considers the closed rule to be an instrument by which the majority stifles floor activity of the minority, thereby undermining deliberative lawmaking. 316See, e.g., Oleszek, supra note 24, at 132; Smith, supra note 30, at 44–45; Solomon & Wolfensberger, supra note 201, at 321–22, 349; Tiefer, supra note 120, at 259, 261; see also supra notes 12–18. As shown above, however, that position mischaracterizes the role of the closed rule in the contemporary House. 317See supra Part III.A. Regular use of the closed rule binds the majority as well as the minority; it precludes floor amendments by all members and, as such, does not materially change the position of the minority within a majoritarian institution. Stated differently, the majority could routinely defeat unwanted floor amendments offered by the minority even in the absence of the closed rule. In the House, the floor position of the minority is weak because the majority has more members, not because the majority uses the closed rule.

A stronger version of this criticism, drawing in part from the distributive theory and informational theory accounts, might argue that the closed rule undermines democratic government by centralizing discretionary agenda control in committee chairs and other managers. Framed narrowly, the argument is that the closed rule allows managers to preempt floor amendments, to foreclose meaningful deliberation among the rank and file, and even to manipulate the floor agenda to secure passage of the managers’ policy preferences. 318See, e.g., Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1300, 1304 (2001) (arguing that non-open rules preclude public deliberation). Framed broadly, the argument would be that all mechanisms of agenda control—as institutional structures that induce equilibria, in the language of positive political theory 319 Shepsle, supra note 91, at 35–37.—frustrate democracy. As William Riker put the point: “[W]hen institutional stability is imposed on what would otherwise be a disequilibrium of tastes, the imposed equilibrium is necessarily unfair. That majority which would, were it not institutionally restrained, displace the current outcome is denied the opportunity to work its will.” 320Riker, supra note 83, at 192; see also id. at 137–39, 169–95, 200, 237. If Riker is generally correct that institutionalized agenda control undermines democratic processes, the closed rule must itself be democratically suspect. 321 Indeed, Mackie, one of Riker’s most prominent critics, does not even attempt to reconcile the closed rule to democratic ideals. Rather, Mackie argues that Riker overstated the incidence of agenda control in Congress and brushes aside the closed rule on the erroneous assumption that it is “seldom invoked.” Mackie, supra note 117, at 169–71.

Without challenging Riker’s fundamental insight that nominally democratic institutions have very serious problems when measured against democratic ideals, this Part offers a qualified defense of the democratic status of the closed rule. If Riker’s point about the deficiency of democratic institutions is taken as given, the question about the legitimacy of the closed rule can be restated as whether the closed rule is less democratic than the open rule. This Part argues that, viewed from an ex ante perspective, even regular use of the closed rule is not inherently less democratic than regular use of the open rule precisely because of the closed rule’s broadly managerial character. Without a concentration of discretionary legislative authority in managers, the activities of the House could quickly devolve into disorder, as they nearly have for brief periods in the recent past. The closed rule and other procedural tools for centralizing power ensure that the full membership can function as a body. Certainly there is a tradeoff in practice: avoiding the turbulence of an entirely decentralized institution requires a delegation of managerial power to a subset of legislators, and too much managerial power threatens the democratic character of the House. 322Sinclair, Legislators, supra note 30, at 17. The regular use of the closed rule represents a considered effort by the rank and file to locate floor activity at the best point along a continuum between comprehensive managerial control and total legislative chaos.

1. The Chaos-Control Problem

Any democratic institution must confront the twin challenges of chaos and control. At one extreme, all members of a legislative body have equal authority, and no member or group of members has formal control over the institution’s process or agenda. Any member can make any proposal at any time, and all questions are decided by majority vote. But this model inevitably tends toward chaos, with members potentially cycling through competing policy options and with the institution potentially unable to approve legislative measures. 323See supra Part I.C (discussion of Arrow’s Theorem and McKelvey’s Theorem). At the other extreme, members delegate key powers—such as agenda-setting power—to managers who establish the conditions for proposing and considering measures. That model inevitably tends toward dictatorial control, with managers potentially able to manipulate substantive outcomes.

Both extremes challenge democratic government. At the control extreme, managers exercise significantly greater influence over legislation than do the rank and file, and the policy preferences of managers carry greater institutional weight than do those of the rank and file. At the chaos extreme, no one member exercises outsized power over institutional decisions, but the institution as a whole is less able to discharge its legislative function. The fact that the House organizes its internal structure around a set of agency relationships does not avoid the chaos–control problem—it simply grounds it. The question is exactly how the agency relationships in the House strike the balance between too much autonomy for rank-and-file members and too much control for managers.

Consider first a possible structure with weak managers. Committees would produce initial drafts of legislative measures, but the measures would be routinely brought to the floor under open rules. Floor amending activity would be robust; the decisions of the committee chairs, the speaker, and the other managers would be regularly reviewed and often overturned on the floor. Such a structure would have considerable advantages for the rank and file. Each member would have a genuine say in setting the floor agenda, and each member could offer amendments to any measure. The disadvantage of such a structure would be disorder on the floor. With 435 members equally empowered to participate in legislative activity, floor proceedings would be protracted and unruly. Controversial measures would draw numerous amendments—both those offered to change the policy positions in the measures and those offered simply to delay final passage. Under this structure, it might require weeks (if not months) for the House to dispose of a single measure. 324Sinclair, Legislators, supra note 30, at 143.

Contrast that with a possible structure having strong managers. Committees would report measures crafted to satisfy managers’ policy preferences, and all measures would come to the floor under closed rules. The floor activity of the rank and file would be limited to ratifying or rejecting whatever was proposed by managers. The tradeoff under this structure would be clear as well. Although the House would be highly organized, predictable, and productive, it would be considerably more difficult for the rank and file to pursue their own policy preferences. The rank and file would choose the managers, but the managers—not the rank and file—would choose legislative outcomes.

The point here is straightforward. The managerial structure created by the existing agency relationships in the House represents an institutional framework for addressing the chaos–control problem. Just as representative government itself provides an agency-based solution to the difficulties of maintaining a direct democracy in the body politic, the managerial structure in the House provides an agency-based solution to the difficulties of maintaining a direct democracy among 435 otherwise coequal legislators. 325Cox & McCubbins, Setting the Agenda, supra note 9, at 9, 17–18, 24; Oleszek, supra note 24, at 24; Sinclair, Legislators, supra note 30, at 9; see also Fiorina & Shepsle, supra note 30, at 37. The extent of discretionary authority delegated to managers determines whether the House leans more toward chaos or more toward control, but the rank and file’s delegation of such authority is no more inherently undemocratic than is constituents’ delegation of legislative power to their elected representatives.

2. The Closed Rule and the Chaos–Control Problem

The closed rule represents an integral component of the rank and file’s effort to select what they judge to be the best point along the chaos–control continuum. The rank and file understand that, by conferring broad discretionary authority on managers to make regular use of the closed rule, they surrender part of their autonomy as members, but they also understand that regular use of the closed rule enables the House to function effectively. This, of course, is a restatement of the basic proposition that the closed rule is one of the institutional structures allowing the House to reach equilibrium outcomes. 326 Shepsle & Weingast, supra note 95, at 514; Shepsle, supra note 91, at 54–55. The claim here is not that the current use of the closed rule in fact optimizes the tradeoff between the autonomy of individual members and managerial power; rather, the claim is that, in giving managers broad authority to make regular use of the closed rule, the rank and file aim to optimize the tradeoff. In other words, the current use of the closed rule represents a rational, deliberate decision by the rank and file to locate the floor activity of the House at a particular point along the chaos–control continuum. 327Cf. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1, 40 (2000) (arguing that courts, in following the numerus clausus principle, aim to optimize standardization in forms of property ownership).

That said, the current use of the closed rule undoubtedly leans toward the control end of the continuum. As shown above, half the special rules during the 109th and 110th Congresses were either closed or effectively closed, allowing managers to present up-or-down votes on many measures brought to the floor. 328See supra Part II.A. Nonetheless, the decision to allow regular use of the closed rule appears rational in light of recent periods during which the House, lacking strong managerial control, tended more toward chaos. The procedural reforms of the early 1970s encouraged extensive amending activity on the floor that led to a markedly less orderly, less predictable, and less productive House. In response, the rank and file granted managers expanded authority over special rules. Chaos briefly emerged again following the Republican takeover of the House in 1995. The Republicans had chafed under closed rules in the minority, and the new Republican majority in 1995 pledged that it would use the closed rule sparingly. 329Sinclair, Unorthodox Lawmaking, supra note 15, at 29. But the Democratic minority quickly demonstrated the case for managerial control. As the Republicans tried to pass the measures constituting the “Contract with America” during the early days of the 104th Congress, Democrats offered numerous amendments intended to draw floor debate out as long as possible. 330Id.; Oleszek, supra note 24, at 128. The rank and file again made a clear choice for control over chaos and allowed House managers to begin bringing up more measures under closed rules. 331Sinclair, Unorthodox Lawmaking, supra note 15, at 280.

Still, the current structure does not locate the House completely at the control end of the continuum. The rank and file do not give managers unreviewable discretion over when and how to use the closed rule. Instead, the rank and file require that any closed rule be brought to the floor as a proposed resolution subject to debate and a vote by the full membership. Although the rank and file use their authority to overrule managers’ decisions about the closed rule sparingly, the retained power to do so on a case-by-case basis remains important. Managers cannot simply disregard the preferences of the rank and file regarding the availability of floor amendments.

3. The Closed Rule and Representative Democracy

Because the closed rule narrows the scope of permissible floor activity for the rank and file, it also narrows the range of legislative activity through which the rank and file can pursue the policy preferences of their constituents. Although legislators have complex motivations that inform their conduct, 332Arnold, supra note 9, at 121–22; Sinclair, Legislators, supra note 30, at 10; Garrett & Vermeule, supra note 318, at 1287–90; see also John W. Kingdon, Models of Legislative Voting, 39 J. Pol. 563 (1977). all members of the House must—to a greater or lesser extent—respond to constituent interests. By conferring substantial discretionary authority on managers, the rank and file generally make themselves weaker agents of their constituents. The closed rule in particular enlarges the authority of managers over the House floor agenda, and this results in fewer opportunities for rank-and-file members to pursue constituent policy preferences through floor amendments. 333 This proposition, of course, ignores the more fundamental problems of determining policy preferences of a representative’s constituents and of reconciling inconsistent preferences among those constituents. See, e.g., Fiorina & Shepsle, supra note 30, at 21. Nonetheless, this structure does not inherently undermine representative democracy; instead, it substitutes one version of representative democracy for another. The rank and file choose to make themselves weaker agents of their constituents precisely so that the House will be orderly, predictable, and productive. 334Cf. Sinclair, Unorthodox Lawmaking, supra note 15, at 284.

Although the closed rule generally makes it more difficult for members to pursue constituent policy preferences, there are important exceptions. First, the closed rule increases the institutional power of members who are themselves managers. A member holding a leadership position enjoys much more control over the House floor agenda than she would if such control were evenly distributed among the full membership. Similarly, the chair of a committee of jurisdiction can better influence the policy content of measures produced by the committee than can other members. To the extent that managers are otherwise inclined to advance their constituents’ policy preferences, the closed rule strengthens the position of managers to do so. Still, the point should not be overstated. House managers are not numerous; only a few members occupy leadership positions, and even a committee chair exercises managerial control only over the work product of her particular committee.

Second, even rank-and-file members do not completely lose the ability to pursue constituent policy preferences under the closed rule. Rank-and-file members still introduce measures, participate in committee work, and vote on the floor. Even on the question of setting the House floor agenda, the rank and file retain some control that can be exercised on behalf of their constituents. Specifically, rank-and-file members can vote down a closed rule, forcing managers to rewrite the rule; if they are truly dissatisfied with a closed rule, they can reject the motion for the previous question on the rule, thereby taking from leadership the authority to write the rule for the underlying measure.

The important point, however, is that the control retained by the rank and file over the House floor agenda is only the residual authority of a principal to monitor its agent and to ratify or reject its agent’s decisions. Inevitably, this affects the degree of constituent influence over legislative outcomes. If the rank and file did not delegate such extensive agenda control to managers, constituents attempting to influence their representatives’ legislative actions would stand in a simple principal–agent relationship with the members having direct control over the floor agenda. Instead, under the managerial structure in which the closed rule is embedded, constituents stand in a principal–agent relationship with members who in turn stand in a principal–agent relationship with the managers having direct control over the floor agenda. Constituents are thus twice removed from key procedural decisions affecting—and sometimes determining—legislative outcomes.

The closed rule’s most significant effect on the constituents of rank-and-file members is the constituents’ diminished ability to have their representatives affect the policy content of measures through floor amendments. This does not imply, however, that the closed rule necessarily undermines representative democracy. Rather, the closed rule helps to shape a particular version of representative democracy—one that provides the rank and file fewer opportunities to advance constituent policy preferences on the floor but makes the House as a whole more orderly, predictable, and productive. Again, the rank and file face a tradeoff when they make basic organizational decisions. Making the closed rule generally available expands managerial control over the floor, which narrows the floor activity of the rank and file and diminishes the direct representation of their constituents’ interests. But prohibiting closed rules would result in less managerial control and greater chaos. Although the rank and file would be able to offer floor amendments representing the policy preferences of their constituents, it would become more difficult for the House as a whole to move measures to final passage. 335Cf. Oleszek, supra note 24, at 132; Sinclair, Unorthodox Lawmaking, supra note 15, at 279.

It is not clear, ex ante, that one of those competing institutional structures serves representative democracy better than the other. At one extreme, bringing all measures to the floor under open rules increases the prospects that the rank and file’s floor activity will reflect constituent policy preferences; however, it may also reduce that floor activity to an exercise in futility as members become caught up in protracted debate and position cycling. Representative democracy would be poorly served by a House mired in chaos. At the other extreme, bringing all measures to the floor under closed rules enables the House to function more effectively, but it increases the likelihood that measures put before the rank and file will not correspond to the policy preferences of their constituents. Representative democracy would also be poorly served by a House in which the floor activity of the rank and file is limited to ratifying or rejecting the policy decisions of managers.

The degree of discretion that the rank and file confer on managers in their use of the closed rule helps to determine where the House locates itself between these two endpoints. The rank and file in the contemporary House authorize regular use of the closed rule not to undermine representative democracy but to actualize a particular version of it—a version that is not inherently less legitimate than one in which no rules are closed. Nonetheless, the current arrangement remains contingent on the preferences of the rank and file—however well or poorly aggregated those preferences may be. Future Congresses no doubt will change the equilibrium observed in recent Congresses, either by decreasing or even increasing managerial authority to use the closed rule.

Conclusion

When properly situated within its institutional and theoretical context, the closed rule stands out as a critical mechanism by which managers control the floor agenda in the House. The closed rule allows managers to determine which policy positions will be considered on the floor (spatial agenda control) and the time allocated to each measure brought up for debate and voting (temporal agenda control). Managers use this agenda control to move measures toward their preferred policy positions. Although both parties object to the closed rule when numbered as the minority, the record in the 109th and 110th Congresses shows that both parties now make the same use of the closed rule when numbered as the majority. Specifically, both parties use closed and effectively closed rules for half the controversial measures brought to the floor.

Understanding the closed rule is critical for assessing the legislative process. The closed rule reinforces the strong internal agency relationships that the rank and file use to organize the activities of the House. By conferring on managers broad discretionary control over the floor agenda, the closed rule strengthens both leadership and the committee chairs. The rank and file retain final authority to ratify or reject managers’ decisions about when and how to use the closed rule, but outright rejection of a closed rule on the floor—such as the defeat of House Resolution 336 that angered President Reagan—is a rare event. The closed rule thus bears directly and importantly on the internal structure of the House: it contributes significantly to the concentration of legislative power among a handful of members holding managerial positions and correspondingly weakens the institutional position of the rank and file. Although positive political theory locates the closed rule in specifically distributive, informational, and partisan theories of legislative organization, the closed rule is more accurately understood, by generalizing those accounts, as broadly managerial.

The closed rule affects the substance of the House’s legislative product and the relationship between House members and their constituents. The closed rule contributes to legislative fragmentation and redundancy, increases capture opportunities for interest groups and Executive Branch agents, and makes bipartisan cooperation and compromise more difficult. Additionally, the closed rule generally diminishes the ability of the rank and file to pursue constituent interests by preventing members from offering floor amendments that might move the policy content of measures closer to their constituents’ policy preferences. But that is part of a considered, deliberate, and rational tradeoff: by allowing managers to restrict their amendment activity, the rank and file steer the floor safely away from the chaos that could result from a weaker managerial structure. The closed rule functions within a particular version of representative democracy—a version in which the rank and file delegate substantial discretionary control over the House floor agenda to make the House more orderly, predictable, and productive. Thus understood, the normative case against the closed rule remains doubtful.

Appendix 1

House Resolution 587—Special Rule for the American Clean Energy and Security Act of 2009 336 H.R. Res. 587, 111th Cong. (2009) (enacted).

Resolved, That upon the adoption of this resolution it shall be in order to consider in the House the bill (H.R. 2454) to create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean energy economy. All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI. In lieu of the amendment recommended by the Committee on Energy and Commerce now printed in the bill, an amendment in the nature of a substitute consisting of the text of H.R. 2998, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted. The bill, as amended, shall be considered as read. All points of order against provisions of the bill, as amended, are waived. The previous question shall be considered as ordered on the bill, as amended, and on any further amendment thereto to final passage without intervening motion except: (1) three hours of debate, with two and one-half hours equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce and 30 minutes equally divided and controlled by the chair and ranking minority member of the Committee on Ways and Means; (2) the further amendment in the nature of a substitute printed in part B of the report of the Committee on Rules, if offered by Representative Forbes of Virginia or his designee, which shall be in order without intervention of any point of order except those arising under clause 9 or 10 of rule XXI, shall be considered as read, and shall be separately debatable for 30 minutes equally divided and controlled by the proponent and an opponent; and (3) one motion to recommit with or without instructions.

Appendix 2-A

Resolutions Reported by the

Rules Committee in the 109th Congress

Rule Designations:

C – Closed Rule

EC – Effectively Closed Rule

L – Limiting Rule

O – Open Rule

X – Rule Not Addressing Floor Amendment Process 337 This designation generally includes resolutions that provide the terms of floor debate, waive standing rules, make in order motions to suspend the rules, or provide for consideration of a conference report. It does not, however, include resolutions that provide for consideration of Senate measures or Senate amendments to House measures; because those resolutions sometimes allow floor amendments, they are included among the resolutions designated as closed, effectively closed, limiting, or open rules. Cf. Krehbiel, Information, supra note 47, at 166 (excluding such resolutions from consideration).

 

 

Resolution No.

House Report

No.

Rule

Type

Total Amndts. Submitted 338 The Rules Committee makes available summaries of amendments submitted for some, but not all, measures.

Total Amndts. Permitted

1.

42

109-1

L

3

3

2.

59

109-2

C

 

0

3.

71

109-3

X

 

n/a

4.

75

109-4

L

20

5

5.

95

109-6

EC

5

1

6.

96

109-7

EC

 

1

7.

125

109-10

EC

6

2

8.

126

109-11

EC

12

3

9.

140

109-14

L

34

10 339 House Resolutions 140 and 144 set forth rules for a single underlying measure; together, they allow 22 of the 34 amendments submitted to the Rules Committee for that measure. See H.R. Res. 140, 109th Cong. (2005); H.R. Res. 144, 109th Cong. (2005).

10.

144

109-15

L

34

12 340 House Resolutions 140 and 144 set forth rules for a single underlying measure; together, they allow 22 of the 34 amendments submitted to the Rules Committee for that measure. See H.R. Res. 140; H.R. Res. 144.

11.

151

109-18

O

 

All

12.

154

109-19

L

22

4

13.

162

109-20

C

 

0

14.

163

109-21

X

 

n/a

15.

181

109-27

X

 

n/a

16.

182

109-28

C

 

0

17.

202

109-35

EC

 

1

18.

211

109-43

C

 

0

19.

219

109-43

L

89

30

20.

235

109-55

C

 

0

21.

236

109-56

EC

11

2

22.

241

109-59

C

 

341 House Resolution 241 is a self-executing rule providing that, upon its adoption, House Resolution 240 is itself adopted. H.R. Res. 241, 109th Cong. (2005). House Resolution 241 is counted as a closed rule because it does not permit any floor amendment to House Resolution 240. Id.

23.

242

109-60

X

 

n/a

24.

248

109-63

X

 

n/a

25.

254

109-69

EC

8

3

26.

255

109-70

O

3

All

27.

258

109-73

X

 

n/a

28.

268

109-76

L

26

10

29.

269

109-77

L

13

5

30.

278

109-83

L

89

24

31.

287

109-87

O

 

All

32.

291

109-94

O

 

All

33.

293

109-96

L

85

29

34.

298

109-97

O

 

All

35.

303

109-105

O

 

All

36.

304

109-106

C

 

0

37.

314

109-122

O

 

All

38.

315

109-127

O

 

All

39.

319

109-132

L

29

28

40.

330

109-140

EC

 

1

41.

331

109-141

EC

10

1

42.

334

109-144

L

11

5

43.

337

109-148

O

 

All

44.

341

109-155

O

 

All

45.

342

109-156

O

 

All

46.

345

109-159

X

 

n/a

47.

346

109-160

L

7

7

48.

351

109-163

C, C, C, C

 

342 House Resolution 351 provides closed rules for four separate measures. See H.R. Res. 351, 109th Cong. (2005).

49.

365

109-175

L

68

39

50.

369

109-178

L

63

20

51.

370

109-179

L

9

6

52.

379

109-183

EC

 

1

53.

380

109-184

L

12

4

54.

385

109-185

C

 

0

55.

386

109-186

C

 

0

56.

387

109-187

C

 

0

57.

392

109-198

X

 

n/a

58.

393

109-199

X

 

n/a

59.

394

109-200

X

 

n/a

60.

395

109-201

X

 

n/a

61.

396

109-202

X

 

n/a

62.

399

109-212

X

 

n/a

63.

400

109-214

X

 

n/a

64.

401

109-214

C

 

0

65.

426

109-217

X

 

n/a

66.

436

109-219

O

 

All

67.

439

109-221

C

 

0

68.

440

109-222

O

 

All

69.

451

109-227

L

8

5

70.

455

109-229

L

25

12

71.

462

109-236

L

50

12

72.

468

109-238

X

 

n/a

73.

469

109-239

C

 

0

74.

470

109-240

EC

12

2

75.

474

109-242

X

 

n/a

76.

481

109-245

EC

 

1

77.

493

109-248

C

 

0

78.

494

109-249

L

6

5

79.

508

109-253

EC

 

2

80.

509

109-254

L

28

9

81.

520

109-257

X

 

n/a

82.

527

109-266

L

15

11

83.

532

109-270

X

 

n/a

84.

538

109-277

X

 

n/a

85.

539

109-278

X

 

n/a

86.

540

109-279

L

 

9

87.

542

109-281

C

 

0

88.

558

109-301

C

 

343 The Rules Committee reported two separate resolutions numbered 558 for two separate measures. The resolution referenced here sets forth a closed rule for H.R.J. Res. 72, 109th Cong. (2005), a continuing resolution for fiscal year 2006.

89.

558

109-301

L

6

344 The Rules Committee reported two separate resolutions numbered 558 for two separate measures. The resolution referenced here sets forth a limiting rule for H.R. 1065, 109th Cong. (2005), the United States Boxing Commission Act.

90.

559

109-302

X

 

n/a

91.

560

109-303

C

 

0

92.

563

109-306

X

 

n/a

93.

564

109-308

X

 

n/a

94.

565

109-309

X

 

n/a

95.

572

109-312

C

 

0

96.

583

109-328

C

 

0

97.

588

109-330

EC

 

1

98.

595

109-343

X

 

n/a

99.

596

109-344

X

 

n/a

100.

602

109-346

C

 

0

101.

610

109-347

L

131

15 345 House Resolutions 610 and 621 set forth rules for a single underlying measure; together, they allow 36 of the 131 amendments submitted to the Rules Committee for that measure. See H.R. Res. 610, 109th Cong. (2005); H.R. Res. 621, 109th Cong. (2005).

102.

619

109-348

C

 

0

103.

620

109-349

X

 

n/a

104.

621

109-350

L

131

21 346 House Resolutions 610 and 621 set forth rules for a single underlying measure; together, they allow 36 of the 131 amendments submitted to the Rules Committee for that measure. See H.R. Res. 610, 109th Cong. (2005); H.R. Res. 621, 109th Cong. (2005).

105.

623

109-355

X

 

n/a

106.

631

109-357

X

 

n/a

107.

632

109-358

X

 

n/a

108.

639

109-361

X

 

n/a

109.

640

109-363

X

 

n/a

110.

653

109-366

C

 

0

111.

654

109-367

X

 

n/a

112.

702

109-381

X

 

n/a

113.

710

109-386

L

11

6

114.

713

109-387

L

25

15

115.

725

109-391

O

 

All

116.

741

109-399

L

103

15 347 House Resolutions 741 and 742 set forth rules for a single underlying measure; together, they allow 23 of the 103 amendments submitted to the Rules Committee for that measure. See H.R. Res. 741, 109th Cong. (2006); H.R. Res. 742, 109th Cong. (2006).

117.

742

109-401

L

103

348 House Resolutions 741 and 742 set forth rules for a single underlying measure; together, they allow 23 of the 103 amendments submitted to the Rules Committee for that measure. See H.R. Res. 741, 109th Cong. (2006); H.R. Res. 742, 109th Cong. (2006).

118.

755

109-404

C

 

0

119.

766

109-405

X

 

n/a

120.

767

109-406

X

 

n/a

121

774

109-438

L

25

6

122.

783

109-441

L

74

9

123.

789

109-450

L

34

15

124.

805

109-458

X

 

n/a

125.

806

109-459

L

55

349 House Resolutions 806 and 811 set forth rules for a single underlying measure; together, they allow 31 of the 55 amendments submitted to the Rules Committee for that measure. See H.R. Res. 806, 109th Cong. (2006); H.R. Res. 811, 109th Cong. (2006).

126.

810

109-460

X

 

n/a

127.

811

109-461

L

55

23 350 House Resolutions 806 and 811 set forth rules for a single underlying measure; together, they allow 31 of the 55 amendments submitted to the Rules Committee for that measure. See H.R. Res. 806, 109th Cong. (2006); H.R. Res. 811, 109th Cong. (2006).

128.

815

109-466

X

 

n/a

129.

816

109-467

L

4

4

130.

817

109-468

EC

22

3

131.

818

109-469

O

 

All

132.

821

109-472

O

 

All

133.

830

109-477

O

 

All

134.

832

109-479

O

 

All

135.

835

109-480

C

 

0

136.

836

109-481

O

 

All

137.

842

109-482

C

 

0

138.

849

109-487

L

7

7

139.

850

109-491

L

27

8

140.

851

109-492

O

 

All

141.

862

109-498

X

 

n/a 351 The Rules Committee reported two separate resolutions numbered 862 for two separate measures. The resolution referenced here waives a procedural rule in the standing rules. See H.R. Res. 862, 109th Cong. (2006).

142.

862

109-498

X

 

n/a 352 The Rules Committee reported two separate resolutions numbered 862 for two separate measures. The resolution referenced here provides for consideration of a conference report. Id.

143.

865

109-501

O

 

All

144.

868

109-502

C

 

0

145.

877

109-507

O

 

All

146.

878

109-516

EC

 

2

147.

885

109-517

C

 

0

148.

886

109-518

C

 

0

149.

890

109-529

O

 

All

150.

891

109-530

L

24

16

151.

896

109-539

C

 

0

152.

897

109-540

L

21

5

153.

906

109-530

L

3

2

154.

907

109-551

EC

3

1

155.

910

109-554

L

 

4

156.

918

109-573

C

 

0

157.

920

109-577

L

4

3

158.

924

109-578

C

 

0

159.

925

109-579

C

 

0

160.

939

109-595

C

3

0

161.

946

109-598

X

 

n/a

162.

947

109-599

L

10

6

163.

951

109-602

X

 

n/a

164.

952

109-603

L

24

6

165.

958

109-606

X

 

n/a

166.

966

109-613

C, C

 

353 House Resolution 966 provides closed rules for two separate measures. See H.R. Res. 966, 109th Cong. (2006).

167.

981

109-642

L

9

7

168.

996

109-646

C

 

0

169.

997

109-647

L

9

5

170.

1002

109-653

C

 

0

171.

1003

109-654

C

 

354 House Resolution 1003 is a self-executing rule providing that, upon its adoption, House Resolution 1000 is itself adopted. H.R. Res. 1003, 109th Cong. (2006). House Resolution 1003 is counted as a closed rule because it does not permit any floor amendment to House Resolution 1000. Id.

172.

1015

109-670

C

 

0

173.

1018

109-671

C, C, C

 

355 House Resolution 1018 provides closed rules for three separate measures. See H.R. Res. 1018, 109th Cong. (2006).

174.

1037

109-677

X

 

n/a

175.

1038

109-678

C

 

0

176.

1039

109-679

C

 

0

177.

1042

109-688

C

 

0

178.

1045

109-690

X

 

n/a

179.

1046

109-691

X

 

n/a

180.

1047

109-692

C

 

0

181.

1054

109-701

C, C

 

356 House Resolution 1054 provides closed rules for two separate measures. See H.R. Res. 1054, 109th Cong. (2006).

182.

1062

109-703

X

 

n/a

183.

1092

109-718

C

 

0

184.

1093

109-719

X

 

n/a

185.

1100

109-723

C

 

0

186.

1101

109-724

X

 

n/a

187.

1105

109-727

C

 

0

 

Appendix 2-B

Floor Outcomes for Special Rules in the 109th Congress

Rule Designations:

C – Closed Rule

EC – Effectively Closed Rule

L – Limiting Rule

O – Open Rule

 

 

Resolution

No.

Rule

Type

Recorded Vote

on Floor 357 A resolution is designated as “yes” if there was a recorded vote either on the motion to order the previous question or on passage of the resolution.

Outcome

on Floor

1.

42

L

No

Passed

2.

59

C

No

Passed

3.

75

L

Yes

Passed

4.

95

EC

No

Passed

5.

96

EC

No

Passed

6.

125

EC

No

Passed

7.

126

EC

Yes

Passed

8.

140

L

No

Passed

9.

144

L

No

Passed

10.

151

O

No

Passed

11.

154

L

Yes

Passed

12.

162

C

Laid on Table

13.

182

C

Laid on Table

14.

202

EC

No

Passed

15.

211

C

Yes

Passed

16.

219

L

No

Passed

17.

235

C

No

Passed

18.

236

EC

No

Passed

19.

241

C

Yes

Passed

20.

254

EC

No

Passed

21.

255

O

No

Passed

22.

268

L

No

Passed

23.

269

L

No

Passed

24.

278

L

Yes

Passed

25.

287

O

No

Passed

26.

291

O

No

Passed

27.

293

L

Yes

Passed

28.

298

O

No

Passed

29.

303

O

No

Passed

30.

304

C

No

Passed

31.

314

O

No

Passed

32.

315

O

No

Passed

33.

319

L

No

Passed

34.

330

EC

No

Passed

35.

331

EC

No

Passed

36.

334

L

Yes

Passed

37.

337

O

No

Passed

38.

341

O

No

Passed

39.

342

O

Yes

Passed

40.

346

L

No

Passed

41.

351

C, C, C, C

Yes

Passed

42.

365

L

Yes

Passed

43.

369

L

Yes

Passed

44.

370

L

No

Passed

45.

379

EC

No

Passed

46.

380

L

No

Passed

47.

385

C

Yes

Passed

48.

386

C

Yes

Passed

49.

387

C

Yes

Passed

50.

401

C

Laid on Table

51.

436

O

No

Passed

52.

439

C

Yes

Passed

53.

440

O

No

Passed

54.

451

L

Yes

Passed

55.

455

L

Yes

Passed

56.

462

L

Yes

Passed

57.

469

C

No

Passed

58.

470

EC

Yes

Passed

59.

481

EC

Yes

Passed

60.

493

C

No

Passed

61.

494

L

Yes

Passed

62.

508

EC

No

Passed

63.

509

L

Yes

Passed

64.

527

L

Yes

Passed

65.

540

L

Yes

Passed

66.

542

C

Laid on Table

67.

558

C

Yes

Passed

68.

558

L

Yes

Passed

69.

560

C

No

Passed

70.

572

C

Yes

Passed

71.

583

C

No

Passed

72.

588

EC

No

Passed

73.

602

C

Yes

Passed

74.

610

L

Yes

Passed

75.

619

C

Yes

Passed

76.

621

L

Yes

Passed

77.

653

C

Yes

Passed

78.

710

L

No

Passed

79.

713

L

No

Passed

80.

725

O

Yes

Passed

81.

741

L

Yes

Passed

82.

742

L

Yes

Passed

83.

755

C

Yes

Passed

84.

774

L

Yes

Passed

85.

783

L

Yes

Passed

86.

789

L

Yes

Passed

87.

806

L

Yes

Passed

88.

811

L

Yes

Passed

89.

816

L

No

Passed

90.

817

EC

Yes

Passed

91.

818

O

Yes

Passed

92.

821

O

Yes

Passed

93.

830

O

Yes

Passed

94.

832

O

Yes

Passed

95.

835

C

Yes

Passed

96.

836

O

Yes

Passed

97.

842

C

Yes

Passed

98.

849

L

No

Passed

99.

850

L

Yes

Passed

100.

851

O

No

Passed

101.

865

O

Yes

Passed

102.

868

C

Yes

Passed

103.

877

O

Yes

Passed

104.

878

EC

Laid on Table

105.

885

C

Yes

Passed

106.

886

C

Yes

Passed

107.

890

O

Yes

Passed

108.

891

L

No

Passed

109.

896

C

Yes

Passed

110.

897

L

Yes

Passed

111.

906

L

Yes

Passed

112.

907

EC

No

Passed

113.

910

L

No

Passed

114.

918

C

No

Passed

115.

920

L

Yes

Passed

116.

924

C

Laid on Table

117.

925

C

Yes

Passed

118.

939

C

Laid on Table

119.

947

L

Yes

Passed

120.

952

L

Yes

Passed

121.

966

C, C

Yes

Passed

122.

981

L

Yes

Passed

123.

996

C

Yes

Passed

124.

997

L

No

Passed

125.

1002

C

Yes

Passed

126.

1003

C

Yes

Passed

127.

1015

C

Yes

Passed

128.

1018

C, C, C

Yes

Passed

129.

1038

C

Yes

Passed

130.

1039

C

Yes

Passed

131.

1042

C

Yes

Passed

132.

1047

C

Laid on Table

133.

1054

C, C

Yes

Passed

134.

1092

C

Laid on Table

135.

1100

C

Yes

Passed

136.

1105

C

No

Passed

 

Appendix 3-A

Resolutions Reported by the

Rules Committee in the 110th Congress

Rule Designations:

C – Closed Rule

EC – Effectively Closed Rule

L – Limiting Rule

O – Open Rule

X – Rule Not Addressing Floor Amendment Process 358 This designation generally includes resolutions that provide the terms of floor debate, waive standing rules, make in order motions to suspend the rules, or provide for consideration of a conference report. It does not, however, include resolutions that provide for consideration of Senate measures or Senate amendments to House measures; because those resolutions sometimes allow floor amendments, they are included among the resolutions designated as closed, effectively closed, limiting, or open rules. Cf. Krehbiel, Information, supra note 47, at 166 (excluding such resolutions from consideration).

 

 

Resolution No.

House Report

No.

Rule

Type

Total Amndts. Submitted 359 The Rules Committee makes available summaries of amendments submitted for some, but not all, measures.

Total Amndts. Permitted

1.

65

110-1

C

 

0

2.

66

110-2

C

 

0

3.

86

110-3

EC

 

1

4.

116

110-6

C

 

0

5.

133

110-9

O

 

All

6.

157

110-12

C

 

0

7.

161

110-13

X

 

n/a

8.

195

110-25

O

 

All

9.

203

110-26

EC

16

3

10.

214

110-31

O

 

All

11.

215

110-32

O

 

All

12.

219

110-34

C

 

0

13.

229

110-36

L

24

6

14.

242

110-49

EC

8

2

15.

254

110-53

L

13

7

16.

260

110-63

C

15

0

17.

261

110-64

C

 

0

18.

269

110-73

C

 

0

19.

270

110-74

L

19

8

20.

274

110-78

L

27

12

21.

275

110-79

EC

22

3

22.

301

110-96

O

 

All

23.

302

110-97

L

6

3

24.

317

110-98

C, C

 

360 House Resolution 317 provides closed rules for two separate measures. See H.R. Res. 317, 110th Cong. (2007).

25.

318

110-99

L

3

3

26.

319

110-100

L

25

6

27.

327

110-105

L

3

2

28.

330

110-108

L

6

4

29.

331

110-109

O

 

All

30.

332

110-110

X

 

n/a

31.

348

110-116

L

22

12

32.

349

110-117

O

 

All

33.

350

110-118

L

8

5

34.

364

110-120

C

 

0

35.

370

110-121

C

 

0

36.

377

110-130

C

 

0

37.

382

110-136

L

46

21

38.

383

110-137

L

15

8

39.

387

110-143

C, C, C

 

361 House Resolution 387 provides closed rules for three separate measures. See H.R. Res. 387, 110th Cong. (2007).

40.

388

110-144

L

16

10

41.

403

110-151

L

135

50

42.

404

110-152

O

 

All

43.

409

110-156

X

 

n/a

44.

429

110-165

L

3

3

45.

437

110-167

C, L

n/a, 48

0, 5 362 House Resolution 437 provides a closed rule for one measure and a limiting rule for a separate measure. See H.R. Res. 437, 110th Cong. (2007).

46.

438

110-168

EC

 

2

47.

453

110-174

L

15

11

48.

464

110-179

C

 

0

49.

465

110-180

C

 

0

50.

473

110-184

O

 

All

51.

480

110-189

O

 

All

52.

481

110-190

O

 

All

53.

498

110-199

O

 

All

54.

502

110-201

EC

23

3

55.

514

110-211

O

 

All

56.

517

110-213

O

 

All

57.

531

110-224

EC

27

1

58.

533

110-226

C

 

0

59.

534

110-227

L

23

6

60.

547

110-235

O

 

All

61.

558

110-242

O

 

All

62.

562

110-255

O

 

All

63.

567

110-260

X

 

n/a

64.

574

110-261

L

112

31

65.

579

110-263

C

 

0

66.

580

110-264

C

 

0

67.

581

110-265

O

 

All 363 House Resolutions 581 and 599 set forth separate rules for a single underlying measure. See H.R. Res. 581, 110th Cong. (2007); H.R. Res. 599, 110th Cong. (2007).

68.

594

110-285

C

 

0

69.

595

110-286

X

 

n/a

70.

596

110-287

O

 

All

71.

597

110-288

X

 

n/a

72.

599

110-290

L

 

11 364 House Resolutions 581 and 599 set forth separate rules for a single underlying measure. See H.R. Res. 581, 110th Cong. (2007); H.R. Res. 599, 110th Cong. (2007).

73.

600

110-291

X

 

n/a

74.

601

110-292

C

 

0

75.

602

110-293

X

 

n/a

76.

613

110-298

X

 

n/a

77.

614

110-299

X

 

n/a

78.

615

110-300

L, C

117, 11

23, 0 365 House Resolution 615 provides a limiting rule for one measure and a closed rule for a separate measure. See H.R. Res. 615, 110th Cong. (2007).

79.

633

110-316

O

 

All

80.

636

110-319

L

14

5

81.

637

110-320

X

 

n/a

82.

650

110-330

L

10

7

83.

659

110-332

X

 

n/a

84.

660

110-333

EC

5

2

85.

664

110-335

L

23

8

86.

675

110-346

C

 

0

87.

677

110-346

C

 

0

88.

678

110-349

L

2

2

89.

682

110-350

L

3

3

90.

683

110-351

L

26

13

91.

701

110-358

L

6

5

92.

702

110-359

L

6

3

93.

703

110-360

C

 

0

94.

704

110-361

C

 

0

95.

719

110-368

C

 

0

96.

720

110-369

L

15

8

97.

724

110-371

L

10

4

98.

741

110-382

C

 

0

99.

742

110-383

L

2

1

100.

746

110-385

C

 

0

101.

763

110-403

L

1

1

102.

764

110-404

L

1

1

103.

765

110-405

C

 

0

104.

773

110-407

L

14

10

105.

774

110-408

C

 

0

106.

780

110-416

L

26

7

107.

781

110-417

EC

 

1

108.

793

110-422

EC

7

3

109.

794

110-427

X

 

n/a

110.

801

110-432

C

 

0

111.

802

110-433

O

 

All

112.

806

110-435

X

 

n/a

113.

809

110-438

EC

 

1

114.

813

110-440

X

 

n/a

115.

817

110-447

X

 

n/a

116.

818

110-448

C

 

0

117.

824

110-449

C

 

0

118.

825

110-450

L

24

18

119.

839

110-471

X

 

n/a

120.

846

110-474

C

 

0

121.

849

110-475

C

 

0

122.

850

110-476

X

 

n/a

123.

859

110-487

X

 

n/a

124.

860

110-488

X

 

n/a

125.

861

110-489

C

 

0

126.

862

110-490

C

 

0

127.

869

110-492

C

 

0

128.

873

110-493

X

 

n/a

129.

876

110-495

X

 

n/a

130.

877

110-496

C

 

0

131.

878

110-497

C

 

0

132.

893

110-498

C, C

 

366 House Resolution 893 provides closed rules for two separate measures. See H.R. Res. 893, 110th Cong. (2007).

133.

894

110-499

C

 

0

134.

918

110-508

L

4

4

135.

922

110-509

L

8

7

136.

940

110-519

EC

7

2

137.

941

110-520

X

 

n/a

138.

955

110-522

X

 

n/a

139.

956

110-523

L

61

27

140.

974

110-524

L

4

2

141.

976

110-525

C

 

0

142.

982

110-526

C, C

 

367 House Resolution 982 is a self-executing rule providing that, upon its adoption, House Resolutions 979 and 980 are adopted. H.R. Res. 982, 110th Cong. (2008). House Resolution 982 is counted as two closed rules because it does not permit a separate vote on any floor amendments to House Resolution 979 or House Resolution 980. Id.

143.

983

110-527

X

 

n/a

144.

1001

110-530

EC

 

1

145.

1014

110-538

C

 

0

146.

1015

110-539

L

15

11

147.

1031

110-547

C

 

368 House Resolution 1031 is a self-executing rule providing that, upon its adoption, House Resolution 895 is itself adopted. H.R. Res. 1031, 110th Cong. (2008). House Resolution 1031 is counted as a closed rule because it does not permit a separate vote on any floor amendments to House Resolution 895. Id.

148.

1036

110-548

EC

22

3

149.

1041

110-549

C

 

0

150.

1065

110-562

L

11

4

151.

1071

110-563

L

4

3

152.

1083

110-572

O

 

All

153.

1084

110-573

L

28

8

154.

1092

110-574

X

 

n/a

155.

1102

110-585

C

 

0

156.

1103

110-586

L

7

4

157.

1107

110-590

L

13

4

158.

1125

110-603

L

23

17

159.

1126

110-604

L

38

15

160.

1156

110-612

C

 

0

161.

1157

110-613

EC

7

2

162.

1167

110-614

X

 

n/a

163.

1174

110-621

L

16

7

164.

1175

110-622

EC

 

3

165.

1189

110-629

X

 

n/a

166.

1190

110-630

C

 

0

167.

1197

110-636

EC

 

3

168.

1212

110-660

C

 

0

169.

1213

110-661

X

 

n/a

170.

1214

110-662

X

 

n/a

171.

1218

110-666

L

128

58

172.

1233

110-677

L

1

1

173.

1234

110-678

L

30

8

174.

1253

110-703

L

21

8

175.

1257

110-707

L

18

12

176.

1265

110-710

C

 

0

177.

1276

110-717

EC

11

2

178.

1277

110-718

EC

3

1

179.

1281

110-719

X

 

n/a

180.

1284

110-720

EC

 

1

181.

1285

110-721

C

 

0

182.

1297

110-731

C

 

0

183.

1298

110-732

C

5

0

184.

1299

110-733

C

 

0

185.

1304

110-734

L

21

5

186.

1317

110-744

EC

5

2

187.

1318

110-745

C

 

0

188.

1339

110-758

L

17

4

189.

1343

110-759

L

20

7

190.

1344

110-760

L

21

11

191.

1350

110-761

X

 

n/a

192.

1362

110-766

C

 

0

193.

1363

110-767

C

 

0

194.

1367

110-368

X

 

n/a

195.

1368

110-369

X

 

n/a

196.

1384

110-800

O

 

All

197.

1388

110-807

L

16

6

198.

1389

110-808

X

 

n/a

199.

1399

110-816

X

 

n/a

200.

1419

110-834

EC

9

3

201.

1433

110-853

C

 

0

202.

1434

110-852

EC

 

1

203.

1441

110-854

L

15

5

204.

1449

110-859

C

 

0

205.

1476

110-867

C

 

0

206.

1488

110-875

C

 

0

207.

1489

110-876

X

 

n/a

208.

1490

110-879

X

 

n/a

209.

1491

110-880

X

 

n/a

210.

1500

110-883

X

 

n/a

211.

1501

110-884

C

 

0

212.

1502

110-887

C

 

0

213.

1503

110-888

X

 

n/a

214.

1507

110-891

C

 

0

215.

1514

110-897

X

 

n/a

216.

1516

110-902

C, C

 

369 House Resolution 1516 provides closed rules for two separate measures. See H.R. Res. 1516, 110th Cong. (2008).

217.

1517

110-903

C

 

0

218.

1525

110-907

C

 

0

219.

1526

110-908

X

 

n/a

220.

1533

110-918

X

 

n/a

221.

1534

110-922

EC

 

1

Appendix 3-B

Floor Outcomes for Special Rules in the 110th Congress

Rule Designations:

C – Closed Rule

EC – Effectively Closed Rule

L – Limiting Rule

O – Open Rule

 

 

Resolution

No.

Rule

Type

Recorded Vote

on Floor 370 A resolution is designated as “yes” if there was a recorded vote either on the motion to order the previous question or on passage of the resolution.

Outcome

on Floor

1.

65

C

Yes

Passed

2.

66

C

Yes

Passed

3.

86

EC

Yes

Passed

4.

116

C

Yes

Passed

5.

133

O

No

Passed

6.

157

C

Yes

Passed

7.

195

O

No

Passed

8.

203

EC

Yes

Passed

9.

214

O

No

Passed

10.

215

O

No

Passed

11.

219

C

Yes

Passed

12.

229

L

Yes

Passed

13.

242

EC

Yes

Passed

14.

254

L

Yes

Passed

15.

260

C

Yes

Passed

16.

261

C

Yes

Passed

17.

269

C

Yes

Passed

18.

270

L

Yes

Passed

19.

274

L

Yes

Passed

20.

275

EC

Yes

Passed

21.

301

O

Yes

Passed

22.

302

EC

No

Passed

23.

317

C, C

Yes

Passed

24.

318

L

Yes

Passed

25.

319

L

No

Passed

26.

327

L

Yes

Passed

27.

330

L

Yes

Passed

28.

331

O

No

Passed

29.

348

L

Yes

Passed

30.

349

O

No

Passed

31.

350

L

Yes

Passed

32.

364

C

Yes

Passed

33.

370

C

Yes

Passed

34.

377

C

Yes

Passed

35.

382

L

Yes

Passed

36.

383

L

Yes

Passed

37.

387

C, C, C

Yes

Passed

38.

388

L

Yes

Passed

39.

403

L

Yes

Passed

40.

404

O

Yes

Passed

41.

429

L

Yes

Passed

42.

437

C, L

Yes

Passed

43.

438

EC

Yes

Passed

44.

453

L

Yes

Passed

45.

464

C

Yes

Passed

46.

465

C

Yes

Passed

47.

473

O

Yes

Passed

48.

480

O

Laid on Table

49.

481

O

No

Passed

50.

498

O

No

Passed

51.

502

EC

Yes

Passed

52.

514

O

No

Passed

53.

517

O

Yes

Passed

54.

531

EC

Yes

Passed

55.

533

C

Yes

Passed

56.

534

L

No

Passed

57.

547

O

Yes

Passed

58.

558

O

Yes

Passed

59.

562

O

Yes

Passed

60.

574

L

Yes

Passed

61.

579

C

Yes

Passed

62.

580

C

Yes

Passed

63.

581

O

Yes

Passed

64.

594

C

Yes

Passed

65.

596

O

No

Passed

66.

599

L

Yes

Passed

67.

601

C

Yes

Passed

68.

615

L, C

Yes

Passed

69.

633

O

Yes

Passed

70.

636

L

Yes

Passed

71.

650

L

Yes

Passed

72.

660

EC

Yes

Passed

73.

664

L

Yes

Passed

74.

675

C

Yes

Passed

75.

677

C

Yes

Passed

76.

678

L

Yes

Passed

77.

682

L

Yes

Passed

78.

683

L

Yes

Passed

79.

701

L

Yes

Passed

80.

702

L

Yes

Passed

81.

703

C

Yes

Passed

82.

704

C

Yes

Passed

83.

719

C

Yes

Passed

84.

720

L

Yes

Passed

85.

724

L

Yes

Passed

86.

741

C

Yes

Passed

87.

742

L

Yes

Passed

88.

746

C

Yes

Passed

89.

763

L

Yes

Passed

90.

764

L

Yes

Passed

91.

765

C

Yes

Passed

92.

773

L

Yes

Passed

93.

774

C

Yes

Passed

94.

780

L

Yes

Passed

95.

781

EC

Yes

Passed

96.

793

EC

Yes

Passed

97.

801

C

Yes

Passed

98.

802

O

Yes

Passed

99.

809

EC

Yes

Passed

100.

818

C

Yes

Passed

101.

824

C

Yes

Passed

102.

825

L

Yes

Passed

103.

846

C

Yes

Passed

104.

849

C

Laid on Table

105.

861

C

Yes

Passed

106.

862

C

Yes

Passed

107.

869

C

Yes

Passed

108.

877

C

Yes

Passed

109.

878

C

Yes

Passed

110.

893

C, C

No

Passed

111.

894

C

Laid on Table

112.

918

L

Yes

Passed

113.

922

L

No

Passed

114.

940

EC

No

Passed

115.

956

L

Yes

Passed

116.

974

L

Yes

Passed

117.

976

C

Yes

Passed

118.

982

C, C

Yes

Passed

119.

1001

EC

Yes

Passed

120.

1014

C

Yes

Passed

121.

1015

L

Yes

Passed

122.

1031

C

Yes

Passed

123.

1036

EC

Yes

Passed

124.

1041

C

Yes

Passed

125.

1065

L

Yes

Passed

126.

1071

L

No

Passed

127.

1083

O

Yes

Passed

128.

1084

L

Yes

Passed

129.

1102

C

Yes

Passed

130.

1103

L

Yes

Passed

131.

1107

L

Yes

Passed

132.

1125

L

Yes

Passed

133.

1126

L

Yes

Passed

134.

1156

C

No

Passed

135.

1157

EC

Yes

Passed

136.

1174

L

Yes

Passed

137.

1175

EC

Yes

Passed

138.

1190

C

Yes

Passed

139.

1197

EC

Yes

Passed

140.

1212

C

Yes

Passed

141.

1218

L

Yes

Passed

142.

1233

L

Yes

Passed

143.

1234

L

Yes

Passed

144.

1253

L

Yes

Passed

145.

1257

L

Yes

Passed

146.

1265

C

Yes

Passed

147.

1276

EC

Yes

Passed

148.

1277

EC

Yes

Passed

149.

1284

EC

Yes

Passed

150.

1285

C

No

Passed

151.

1297

C

Yes

Passed

152.

1298

C

Yes

Passed

153.

1299

C

Yes

Passed

154.

1304

L

Yes

Passed

155.

1317

EC

Yes

Passed

156.

1318

C

Yes

Passed

157.

1339

L

Yes

Passed

158.

1343

L

Yes

Passed

159.

1344

L

Yes

Passed

160.

1362

C

Yes

Passed

161.

1363

EC

Yes

Passed

162.

1384

O

Yes

Passed

163.

1388

L

Yes

Passed

164.

1419

EC

Yes

Passed

165.

1433

C

Yes

Passed

166.

1434

EC

Yes

Passed

167.

1441

L

Yes

Passed

168.

1449

C

Yes

Passed

169.

1476

C

Yes

Passed

170.

1488

EC

Yes

Passed

171.

1501

C

Laid on Table

172.

1502

C

Yes

Passed

173.

1507

C

Yes

Passed

174.

1516

C, C

Laid on Table

175.

1517

EC

Yes

Passed

176.

1525

C

Yes

Passed

177.

1534

EC

Yes

Passed

 

Footnotes

Professor of Law, Georgetown University Law Center. For comments and suggestions on earlier drafts, many thanks to Daryl Levinson, Alex Raskolnikov, Jim Ryan, Ethan Yale, and George Yin. Gratias ago in primis Olivia filia mea.

1Ronald Reagan, The Reagan Diaries 376 (Douglas Brinkley ed., 2007). The bowdlerized entry is not unusual in the diaries; President Reagan apparently was not one to turn the page blue.

2 The vote was 202 to 223. 131 Cong. Rec. 35,957 (1985).

3 After the vote on the resolution, the Speaker reportedly said to an aide that the defeat made the President “a lame duck on the floor of the House.” Jeffrey H. Birnbaum & Alan S. Murray, Showdown at Gucci Gulch: Lawmakers, Lobbyists, and the Unlikely Triumph of Tax Reform 165 (1987). But the President’s setback did not endure; during its next session, Congress passed the tax-reform measure. See Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (codified as amended in scattered sections of 16 U.S.C., 19 U.S.C., 25 U.S.C., 26 U.S.C., 28 U.S.C., 29 U.S.C., 42 U.S.C., 46 U.S.C., and 49 U.S.C.). The glow of that victory did not endure either. Just over two weeks after he signed the tax-reform measure, the press broke what President Reagan, again writing in his diary, at first called “a wild story” about his Administration selling arms to Iran in exchange for hostages held in Lebanon. Reagan, supra note 1, at 448.

4 These remarks are the characterization of House Resolution 336 made by its sponsor. 131 Cong. Rec. 35,945 (1985) (remarks of Rep. Bonior).

5See, e.g., 131 Cong. Rec. 35,948 (1985) (remarks of Rep. Lott and Rep. Kemp); id. at 35,949 (remarks of Rep. Wolf); id. at 35,951 (remarks of Rep. Taylor); id. at 35,952 (remarks of Rep. Miller and Rep. Traficant); id. at 35,954 (remarks of Rep. Green).

6 House Resolution 336 also included a “self-executing” provision that would have treated a particular amendment as though it had been adopted. That amendment was itself controversial. See Birnbaum & Murray, supra note 3, at 162.

7 House Resolution 336 also allowed a specific perfecting amendment to the Republican substitute measure. 131 Cong. Rec. 35,944 (1985).

8 In addition to the specific amendments that it allowed, House Resolution 336 made in order any “amendments to the bill recommended by the Committee on Ways and Means,” thereby allowing the chair of that committee to propose further changes on the floor. Id.

9 President Reagan certainly knew what was at stake with House Resolution 336. Four years earlier, House Republicans had joined a coalition of House Democrats to vote down a special rule that likely would have prevented passage of a tax measure that had been the highest domestic-policy priority of President Reagan’s first year in office. R. Douglas Arnold, The Logic of Congressional Action 180–81 (1990); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives 117–18 (2005) [hereinafter Cox & McCubbins, Setting the Agenda].

10See infra Part II.

11Comm. on Rules, 97th Cong., A History of the Committee on Rules 63 (Comm. Print 1983) [hereinafter Rules Committee History].

12See 134 Cong. Rec. 12,179–80 (1988) (remarks of Rep. Lott, arguing that closed and modified closed rules exposed the minority “to the caprice of the majority leadership”).

13 Robert E. Bauman, Majority Tyranny in the House, in View from the Capitol Dome (Looking Right) 11 (John H. Rousselot & Richard T. Schulze eds., 1980).

14 Stanley Bach, The Structure of Choice in the House of Representatives: The Impact of Complex Special Rules, 18 Harv. J. on Legis. 553, 580 n.72 (1981) (quoting 123 Cong. Rec. 5888 (1977) (remarks of Rep. Frenzel)).

15 The remarks, quoted in Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress 171 (2007) [hereinafter Sinclair, Unorthodox Lawmaking] (internal quotation marks omitted), were made by Representative Slaughter of New York in 2003. Representative Slaughter apparently revised her views several years later. As chair of the Rules Committee in the 110th Congress, she was responsible for bringing seventy-six closed rules to the floor. See infra Part II.A.

16H. Rules Comm. Minority Office, 108th Cong., Broken Promises: The Death of Deliberative Democracy 15 (2005), available at http://www.citizen.org/documents/Broken_Promises.pdf.

17Sinclair, Unorthodox Lawmaking, supra note 15, at 189 (quoting Rep. Hoyer).

18 154 Cong. Rec. 10,044 (2008) (remarks of Rep. Diaz-Balart).

19 References in the legal literature to the closed rule normally are made by way of background to specific federal statutes. See, e.g., Michael Montaño, Note, Who May Be Tried Under the Military Commissions Act of 2006?, 61 Stan. L. Rev. 1281, 1322 (2009).

20U.S. Const. art. I, §§ 1–2, 5.

21U.S. Const. art. I, § 5.

22 The standing rules, which set out general House procedures, are distinct from special rules, which allow or facilitate floor consideration for individual measures. See Comm. on Rules, U.S. H.R., Floor Procedure in the U.S. House of Representatives (1999) [hereinafter Floor Procedure], available at http://rules.house.gov/Archives/floor_man.htm. The 111th Congress has adopted the most recent version of the standing rules. Office of the Clerk of the U.S. H.R., Rules of the House of Representatives, One Hundred Eleventh Congress (2009) [hereinafter Standing Rules]. The standing rules are reproduced in the “House Manual,” which also includes the Constitution and Jefferson’s Manual of Parliamentary Practice. Judy Schneider, Cong. Research Serv., Order Code 98-262 GOV, House Rules Manual: Summary of Contents (2007), available at http://www.rules.house.gov/archives/98-262.pdf.

23Standing Rules, supra note 22, rs. I–II, X–XXI, XXIII–XXVII.

24Walter J. Oleszek, Congressional Procedures and the Policy Process 6–7 (7th ed. 2007). For certain legislative matters (such as the budget), federal statutes provide additional rules of proceeding. Id. at 7.

25 This includes the speaker, the majority leader, the majority whip, and the chair of the Rules Committee (among others).

26 The reference to “committee chairs” should be understood to include subcommittee chairs. In both cases, a chair of a committee or a subcommittee of jurisdiction should be considered a manager only for measures that fall within that committee’s or subcommittee’s jurisdiction. For example, the chair of the Committee on Agriculture would be a manager as to a farm measure but not as to a defense measure.

27 Although there is a parallel structure on the minority side—a minority leader, a minority whip, and ranking members of committees—the House’s strong commitment to majority rule generally is not consistent with considering those members to be “managers” as that term is used in this Article.

28See generally Sinclair, Unorthodox Lawmaking, supra note 15.

29 Since initiation of the discharge petition in 1931, only three measures discharged by petition from a House committee of jurisdiction have become law. Richard S. Beth, Cong. Research Serv., Order Code 97-552 GOV, The Discharge Rule in the House: Principal Features and Uses 4–5 (2003); Oleszek, supra note 24, at 144.

30Barbara Sinclair, Legislators, Leaders, and Lawmaking: The U.S. House of Representatives in the Postreform Era 8–18 (1995) [hereinafter Sinclair, Legislators]; see also Steven S. Smith, Call to Order: Floor Politics in the House and Senate 168, 234 (1989); Morris P. Fiorina & Kenneth A. Shepsle, Formal Theories of Leadership: Agents, Agenda Setters, and Entrepreneurs, in Leadership and Politics: New Perspectives in Political Science 17, 20–21 (Bryan D. Jones ed., 1989).

31 U.S. Const. art. I, § 2; Standing Rules, supra note 22, r. X; Oleszek, supra note 24, at 21, 92; Sinclair, Legislators, supra note 30, at 64–67.

32 U.S. Const. art. I, § 5.

33 Lawrence C. Dodd & Bruce I. Oppenheimer, The Politics of the Contemporary House: From Gingrich to Pelosi, in Congress Reconsidered 23, 24 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2005).

34Sinclair, Unorthodox Lawmaking, supra note 15, at 110–11; Smith, supra note 30, at 24–35.

35 Dodd & Oppenheimer, supra note 33, at 28.

36Oleszek, supra note 24, at 79.

37Smith, supra note 30, at 253.

38Standing Rules, supra note 22, rs. X & XII.

39Id. rs. XIII−XVI.

40Oleszek, supra note 24, at 90–91. In both cases, however, the measure is subject to discharge by petition of a majority of the full membership. Standing Rules, supra note 22, r. XV; Oleszek, supra note 24, at 143–46. See generally Beth, supra note 29.

41Wm. Holmes Brown & Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures of the House 857 (2003) [hereinafter House Practice]; see also Methods of Obtaining House Floor Consideration, Parliamentary Outreach Program, Comm. on Rules, U.S. H.R., (last visited Mar. 2, 2010) (explaining procedures for bringing measures to the House floor). There are separate procedures for bringing discharged measures and private measures to the floor. Id.

42Standing Rules, supra note 22, rs. XIII−XIV. Rule XIV sets forth the daily order of business, and Rule XIII grants certain committees privilege to report certain measures. A measure called up through the regular order generally is debatable only for one hour and is subject to amendment only by the member who calls up the measure. Christopher M. Davis, Cong. Research Serv., Order Code 95-563, The Legislative Process on the House Floor: An Introduction 4 (2006). The standing rules require, however, that most tax or spending measures first be considered in the Committee of the Whole House on the state of the Union (the “Committee of the Whole”). Standing Rules, supra note 22, r. XVIII. The Committee of the Whole—which also considers other measures, either by motion or by special rule—comprises the full membership of the House but allows for more flexible debate and amendment procedures than does the House. Oleszek, supra note 24, at 156–58. Any measure passed in the Committee of the Whole must pass in the House as well. Id. at 180; see also Davis, supra, at 6. For background on the Committee of the Whole, see Stanley Bach, The Amending Process in Congress 23–40 (2003).

43Standing Rules, supra note 22, r. XIII, XXII; James V. Saturno, Cong. Research Serv., Order Code RS20067, How Measures Are Brought to the House Floor: A Brief Introduction 2−3 (2005); Oleszek, supra note 24, at 122.

44Standing Rules, supra note 22, rs. XIV−XV; Saturno, supra note 43, at 4; Oleszek, supra note 24, at 115, 125−26, 146; Smith, supra note 30, at 253.

45Saturno, supra note 43, at 4; Stanley Bach, Cong. Research Serv., Special Rules in the House of Representatives 1 (1991); Oleszek, supra note 24, at 146.

46Elizabeth Rybicki & Stanley Bach, Cong. Research Serv., Order Code 97-236 GOV, Floor Procedure in the House of Representatives: A Brief Overview 2 (2003); Oleszek, supra note 24, at 116.

47Standing Rules, supra note 22, r. XV; Saturno, supra note 43, at 4−5; Oleszek, supra note 24, at 118. See generally Elizabeth Rybicki, Cong. Research Serv., Order Code 98-314, Suspension of the Rules in the House: Principal Features (2006) (explaining suspension procedure); Thomas P. Carr, Cong. Research Serv., Order Code RL 32474, Suspension of the Rules in the House of Representatives (2005) (same). Because a measure brought up under the suspension procedure cannot be amended other than by the member making the suspension motion, the procedure effectively acts as a closed rule with a supermajority requirement. Keith Krehbiel, Information and Legislative Organization 155 (1991) [hereinafter Krehbiel, Information].

48Oleszek, supra note 24, at 118; Sinclair, Unorthodox Lawmaking, supra note 15, at 23−25.

49Bach, supra note 45, at viii; Oleszek, supra note 24, at 123; Smith, supra note 30, at 259.

50 James A. Robinson, The House Rules Committee 1–2 (1963).

51See generally Richard S. Beth, Cong. Research Serv., Order Code 98-354 GOV, How Special Rules Regulate Calling up Measures for Consideration in the House (2005).

52See generally James V. Saturno, Cong. Research Serv., Order Code 98-433 GOV, Special Rules and Waivers of House Rules (2007).

53See generally James V. Saturno, Cong. Research Serv., Order Code 98-612 GOV, Special Rules and Options for Regulating the Amending Process (2006).

54Robinson, supra note 50, at 23−42; Sinclair, Legislators, supra note 30, at 26. For an account of how the chair of the Rules Committee obstructed floor consideration of the Civil Rights Act of 1964, see Nicole L. Guéron, Note, An Idea Whose Time Has Come: A Comparative Procedural History of the Civil Rights Acts of 1960, 1964, and 1991, 104 Yale L.J. 1201, 1229 (1995).

55Rules Committee History, supra note 11, at 187–95; Robinson, supra note 50, at 71−80.

56See Oleszek, supra note 24, at 125; Robinson, supra note 50, at 78; Sinclair, Legislators, supra note 30, at 71, 314; Bruce I. Oppenheimer, The Rules Committee: New Arm of Leadership in a Decentralized House, in Congress Reconsidered 96, 96−105 (1977); Steven S. Smith & Gerald Gamm, The Dynamics of Party Government in Congress, in Congress Reconsidered, supra note 33, at 141. Leadership’s control may have begun to erode the committee’s institutional prestige. See James M. Curry & Jill L. Gloekler, I’m Your Puppet: The Changing Role of the House Committee on Rules (APSA Toronto Meeting Paper, Working Paper, 2009), available at http://www.bsos.umd.edu/gvpt/jcurry/docs/curry_gloekler_rules.pdf.

57Bach, supra note 45, at 139−40; Rules Committee History, supra note 11, at 10; House Practice, supra note 41, at 859; Sinclair, Legislators, supra note 30, at 150.

58See generally James V. Saturno, Cong. Research Serv., Order Code 98-313 GOV, House Rules Committee Hearings on Special Rules (2006); see also Floor Procedure, supra note 22.

59Floor Procedure, supra note 22.

60Bach, supra note 45, at 143−44; House Practice, supra note 41, at 861−64. However, if the House rejects the motion for the previous question (that is, the motion to proceed to a vote on final passage) for a special rule, control over the rule passes to a member who opposed the motion. Bach, supra note 45, at 40, 144; House Practice, supra note 41, at 865.

61Floor Procedure, supra note 22.

62Bach, supra note 45, at 2−3; Oleszek, supra note 24, at 142; Sinclair, Unorthodox Lawmaking, supra note 15, at 36−37.

63 H.R. Res. 587, 111th Cong. (2009). Appendix 1 sets forth the text of the resolution.

64 Specifically, House Resolution 587 provides that “upon the adoption of this resolution it shall be in order to consider in the House the bill (H.R. 2454) to create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean economy.” Id.

65 House Resolution 587 allows “three hours of debate, with two and one-half hours equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce and 30 minutes equally divided and controlled by the chair and ranking minority member of the Committee on Ways and Means.” Id.

66 House Resolution 587 waives “[a]ll points of order against consideration of the bill . . . except those arising under clause 9 [requiring the disclosure of earmarks] or 10 [requiring that any measure increasing the federal deficit be offset by a tax increase or spending decrease] of rule XXI.” Id.

67 House Resolution 587 provides that “[i]n lieu of the amendment recommended by the Committee on Energy and Commerce now printed in the bill, an amendment in the nature of a substitute consisting of the text of H.R. 2998, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted.” Id. As special rules commonly do, House Resolution 587 also treats the “previous question . . . as ordered on the bill,” eliminating the need to move for a vote on final passage for the underlying measure. Id. For a discussion of “self-executing rules,” see Oleszek, supra note 24, at 137−38.

68 House Resolution 587 makes in order (in addition to the amendments treated as adopted by the resolution) a “further amendment in the nature of a substitute printed in part B of the report of the Committee on Rules, if offered by Representative Forbes of Virginia or his designee, which shall be . . . separately debatable for 30 minutes equally divided and controlled by the proponent and an opponent.” H.R. Res. 587.

69Saturno, supra note 53, at 1; Bach, supra note 45, at 9−17.

70 There are variants on the open rule, including one that requires amendments to be preprinted in the Congressional Record. House Practice, supra note 41, at 868. That variant generally is justified as giving members an opportunity to study amendments before they are offered. For that reason, however, it also eliminates the tactical advantage of offering a surprise amendment.

71Saturno, supra note 53, at 2; Bach, supra note 45, at 39−46. A closed rule nonetheless usually allows the minority to offer one amendment by way of a motion to recommit the measure with instructions. Such a motion, if successful, sends the underlying measure back to the substantive committee and directs the committee to return the measure immediately to the floor with whatever changes are set forth in the motion to recommit. In short, the motion to recommit with instructions has the effect of amending the underlying measure. The standing rules do not allow the Rules Committee to report a special rule that prevents the minority from offering a motion to recommit. Standing Rules, supra note 22, r. XIII, cl. 6(c); Saturno, supra note 53, at 2; House Practice, supra note 41, at 858.

72Davis, supra note 42, at 9; Saturno, supra note 53, at 1−2. For example, House Resolution 336, the special rule on which the Republicans in the House rebelled against President Reagan, allowed only three floor amendments and was designated by the Rules Committee as a “modified closed rule.” H.R. Res. 336, 99th Cong. (1985); see also supra note 4.

73Oleszek, supra note 24, at 133. Both academic and non-academic commentators often use the term “restrictive rule” to refer to a special rule that is not labeled as either open or closed. See, e.g., Bach, supra note 45, at 6, 47−55. But that term is not fully satisfactory. In certain cases, a non-open rule may allow substantially all the amendments that members have submitted to the Rules Committee. A rule with such minimal limitations on floor amendments should not be regarded as restrictive. Additionally, a rule that commentators might designate as restrictive could allow so few amendments that it really should be regarded as a closed rule. And even a restrictive rule allowing votes on several versions of a measure might effectively constrain floor outcomes through a “king-of-the-hill” or “queen-of-the-hill” voting procedure. Those procedures typically ensure that the version preferred by the Rules Committee will prevail. See Bach, supra note 45, at 57−70; Oleszek, supra note 24, at 138−40.

74Summary of Amendments Submitted to the Rules Committee for H.R. 2454—American Clean Energy and Security Act of 2009, Comm. on Rules, U.S. H.R. (June 25, 2009, 4:58 PM) http://www.rules.house.gov/amendment_details.aspx?NewsID=4341.

75 Rep. Forbes of Virginia offered an amendment to The American Clean Energy and Security Act of 2009, H.R. 2454, 155 Cong. Rec. H7672–7680 (daily ed. June 26, 2009), which was defeated by a roll call vote of 172 to 256, with 5 representatives not voting. . at H7685.

76 More specifically, a rule is designated as “effectively closed” if it both allows three or fewer amendments and disallows more than half the amendments submitted to the Rules Committee. Any rule (other than a closed rule or an effectively closed rule) will be designated as “limiting” if it preselects the amendments that may be offered on the floor. Thus, a rule may be designated as “limiting” even if it allows all or substantially all the amendments submitted to the Rules Committee. In such cases, the Rules Committee exercises agenda control by preselecting the amendments that may be offered and by precluding an open amendment process. Finally, a rule will be designated as “open” even if it requires that amendments be preprinted in the Congressional Record (or if it gives priority to such amendments).

77Robinson, supra note 50 at 44−45.

78 John C. Blydenburgh, The Closed Rule and the Paradox of Voting, 33 J. Pol. 57, 57–58 (1971); see also Rules Committee History, supra note 11, at 14; Robinson, supra note 50, at 44–45. President Herbert Hoover blamed the defeat of a measure setting out his 1932 tax proposals on Speaker John Nance Garner’s decision to bring the measure to the floor under an open rule. Herbert Hoover, The Memoirs of Herbert Hoover: The Great Depression 137–38, 160 (1952).

79Rules Committee History, supra note 11, at 126–27.

80Bach, supra note 14, at 567.

81Oleszek, supra note 24, at 129; Sinclair, Unorthodox Lawmaking, supra note 15, at 26; Smith, supra note 30, at 74−75, 188−90; see also infra Part II.

82Sinclair, Unorthodox Lawmaking, supra note 15, at 29, 39, 112.

83William H. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice 137–39, 169–95, 200, 237 (1982). More generally, legislative process helps to determine legislative outcomes. Krehbiel, Information, supra note 47, at 1–2, 151; see also Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547–48 (1983); Charles J. Finocchiaro & David W. Rohde, War for the Floor: Partisan Theory and Agenda Control in the U.S. House of Representatives, 33 Leg. Stud. Q. 35, 37 (2008).

84Peter C. Ordeshook, A Political Theory Primer 24−25 (1992).

85 These individual preferences are all assumed to be transitive, such that member A prefers option x to option z, member B prefers option z to option y, and member C prefers option y to option x.

86 This assumes that the members vote sincerely.

87Ordeshook, supra note 84, at 80–81.

88Id. at 81.

89See generally Kenneth J. Arrow, Social Choice and Individual Values (1951); Peter C. Ordeshook, Game Theory and Political Theory: An Introduction 62 (1986). A Condorcet winner does emerge in the case of unidimensional space and single-peaked preferences held by an odd number of voters. Riker, supra note 83 at 126; see also Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in Positive Theories of Congressional Institutions 5 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995) [hereinafter Shepsle & Weingast, Positive Theories].

90 Richard D. McKelvey, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J. Econ. Theory 472 (1976); see also Ordeshook, supra note 89, at 76–82, 281–82; Fiorina & Shepsle, supra note 30, at 28–29.

91See Keith Krehbiel, Spatial Models of Legislative Choice, 13 Leg. Stud. Q. 259 (1988) [hereinafter Krehbiel, Spatial Models]; Shepsle & Weingast, Positive Theories, supra note 89 at 8. The relevant literature began with Shepsle’s classic article demonstrating that exogenous institutional mechanisms can produce stable legislative outcomes—what he called “structure-induced equilibrium.” Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27 (1979).

92See Ordeshook, supra note 89, at 65–66 (explaining effect of agenda-setting power on voting outcomes); Riker, supra note 83, at 65, 69–73 (same); Fiorina & Shepsle, supra note 30, at 29 (same).

93Ordeshook, supra note 89, at 65–66.

94 For simplicity of presentation, this example assumes that the members vote sincerely. But assuming that the members vote strategically does not significantly change the result. Ordeshook, supra note 89, at 281–83; Fiorina & Shepsle, supra note 30, at 30–31. Also, political theory suggests that agenda control becomes more tenuous with incomplete and asymmetric information about the preferences of individual legislators. Ordeshook, supra note 84, at 227–34. House managers, however, mitigate such information problems through an extensive whip system. See Sinclair, Legislators, supra note 30, at 116–35 (explaining the House whip system).

95 As such, the closed rule is properly located among the institutional mechanisms that produce stability in the House. See Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 Public Choice 503, 514 (1981); Shepsle, supra note 91, at 54–55. This point was recognized even before Shepsle introduced the concept of “structure-induced equilibrium.” See Blydenburg, supra note 78. It should be noted that even the open rule is embedded in particular institutional constraints on floor activity that stabilize outcomes (helping to prevent the outright chaos implied by McKelvey’s Theorem). See generally Barry R. Weingast, Floor Behavior in the U.S. Congress: Committee Power Under the Open Rule, 83 Am. Pol. Sci. Rev. 795 (1989) [hereinafter Weingast, Floor Behavior].

96 There remains, however, the possibility that a Condorcet winner blocked by a closed rule may emerge as the floor winner if the minority offers the Condorcet winner in a motion to recommit with instructions. See supra note 71. For a broader argument that “negative agenda power”—the ability to block measures from floor consideration—constitutes a critical function of House managers, see Cox & McCubbins, Setting the Agenda, supra note 9, at 3–5, 37–197.

97See James M. Enelow & Melvin J. Hinich, The Spatial Theory of Voting: An Introduction 8–13 (1984) (explaining one-dimensional models of spatial voting).

98 Krehbiel, Spatial Models, supra note 91, at 305.

99Id. If Measure 2 comes to the floor under a closed rule, the minority can potentially secure passage of either Measure 1 or Measure 3 by offering Measure 1 or Measure 3 as a motion to recommit with instructions. See supra note 71.

100 Manager preferences on measures likely will reflect, in part, the preferences of the rank-and-file members of the majority party. See generally Cox & McCubbins, Setting the Agenda, supra note 9 (arguing that party leaders aggregate and promote preferences of party rank and file). Because the relationship between managers and the rank and file is an agency relationship, however, manager preferences likely diverge from the preferences of the majority-party rank and file in non-trivial respects. See Fiorina & Shepsle, supra note 30, at 18–21 (discussing the principal’s difficulty in controlling an agent). Of course, manager preferences do not always have sufficient support to prevail on the floor. When the House initially passed its measure for health care reform on November 7, 2009, for example, the Democratic leadership determined that its preferred version—which did not include the strict limits on federal funding of abortions sought by a faction of the Democratic party—would not pass on the floor. The leadership, therefore, allowed a floor amendment that included those limits. David M. Herszenhorn & Jackie Calmes, Abortion Was at Heart of Wrangling, N.Y. Times, Nov. 8, 2009, at A24. Even then, however, House managers used an effectively closed rule for the measure to ensure that the floor amendment setting out the abortion funding limitations would be exactly as negotiated by the House managers and the faction seeking the limitations. Id. For further discussion of manager preferences, see infra note 283.

101 John H. Aldrich & David W. Rohde, Congressional Committees in a Partisan Era, in Congress Reconsidered 249, 253–54 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 8th ed. 2005); see also Stanley Bach & Steven S. Smith, Managing Uncertainty in the House of Representatives: Adaptation and Innovation in Special Rules 55, 57, 91 (1988); Cox & McCubbins, Setting the Agenda, supra note 9, at 126–27; Oleszek, supra note 24, at 127; Ordeshook, supra note 84, at 79−80; Sinclair, Legislators, supra note 30, at 32–33, 70, 136–62, 219, 303; Sinclair, Unorthodox Lawmaking, supra note 15, at 30−31, 112, 199, 203−04, 211; Smith, supra note 30, at 76, 191; Dodd & Oppenheimer, supra note 33, at 49; Guéron, supra note 54, at 1211−12.

102Cox & McCubbins, Setting the Agenda, supra note 9, at 44.

103U.S. Const. art. I, § 2.

104Bach & Smith, supra note 101, at 54; Cox & McCubbins, Setting the Agenda, supra note 9, at 55–56; Sinclair, Legislators, supra note 30, at 77–78; Sinclair, Unorthodox Lawmaking, supra note 15, at 29; Smith, supra note 30, at 36, 40.

105Cf. Sinclair, Unorthodox Lawmaking, supra note 15, at 279.

106See infra Part II.B. Democratic managers used the closed rule to control the temporal agenda on the floor during the self-imposed “100 Hours” time limit at the beginning of the 110th Congress. See Oleszek, supra note 24, at 139; Sinclair, Unorthodox Lawmaking, supra note 15, at 286−87. Similarly, Republican managers used the closed rule to control the temporal agenda on the floor during consideration of the “Contract with America” legislation. Sinclair, Unorthodox Lawmaking, supra note 15, at 29.

107Oleszek, supra note 24, at 89−107.

108Sinclair, Unorthodox Lawmaking, supra note 15, at 20−23.

109Oleszek, supra note 24, at 123−28.

110 However, the leadership, which holds the ultimate influence over the decisions of the Rules Committee, likely enjoys a much larger share of that agenda control than does the chair of the reporting committee. For an account of agenda-setting power as a “cartel” controlled by House managers, see Cox & McCubbins, Setting the Agenda, supra note 9, at 9.

111Oleszek, supra note 24, at 155−56; cf. Fiorina & Shepsle, supra note 30, at 31–32 (arguing that a “full-blown theory of agenda setting” should account for “the institutional constraints (incentives and monitoring) that followers impose on their leaders in their agenda-setting activities”).

112Oleszek, supra note 24, at 155−56. Consider, for example, the voting outcomes associated with the initial attempt to pass the economic bailout measure in the House during the fall of 2008: the full membership approved the special rule for consideration of the measure by a vote of 220-198 and then defeated the measure itself by a vote of 205-228. 154 Cong. Rec. H10335, H10410 (daily ed. Sept. 29, 2008).

113See supra Introduction; see also Oleszek, supra note 24, at 142.

114 This Article generally does not consider the Senate, and it thereby sets aside important questions that would have to be addressed in considering agenda control within Congress as a whole. The Senate does not have a closed rule, and agenda control in the Senate generally is exercised through ad hoc unanimous consent agreements (which obviously require the approval of all senators). Oleszek, supra note 24, at 203–11. One might argue that legislative processes in the Senate provide a natural experiment for considering the effect of the closed rule in the House. In other words, one might argue that what happens in the Senate is suggestive of what would happen in the House absent the closed rule and that, accordingly, claims about the closed rule can be tested by reference to the Senate. But the comparison does not hold. The Senate and the House differ in several important respects apart from the closed rule. First, the Senate, unlike the House, is not organized around the principle of simple majority rule. The de facto need for a supermajority of senators on many measures normally means that the majority party cannot assume that it will have its way on the floor. Second, the Senate recognizes substantially greater privileges for individual senators than does the House for its members. Third, the Senate does not have the germaneness requirement that the House does for floor amendments; thus, an unwelcome amendment cannot be avoided in the Senate simply by refusing to call up a measure for which the unwelcome amendment would be in order. Those points (and others) imply that the legislative proceedings in the Senate do not reliably reflect how the House would operate without the closed rule. A Senate with a closed rule likely would have stronger managerial agenda control than does the current Senate, and a House without a closed rule likely would have weaker managerial agenda control than does the current House. But a House without a closed rule likely would not look very much at all like the current Senate.

115 Political scientists normally would refer to such rules as “restrictive rules.” See, e.g., Bach & Smith, supra note 101, at 50–74; supra note 73.

116See, e.g., Arnold, supra note 9, at 103; Bach & Smith, supra note 101, at 55–57; Sinclair, Legislators, supra note 30, at 140–41, 161.

117Gerry Mackie, Democracy Defended 170 (2003).

118 Vijay Krishna & John Morgan, Asymmetric Information and Legislative Rules: Some Amendments, 95 Am. Pol. Sci. Rev. 435 (2001).

119Sinclair, Unorthodox Lawmaking, supra note 15, at 280; see also Dodd & Oppenheimer, supra note 33, at 49. Even now, Sinclair continues to emphasize restrictive rules over closed rules. Barbara Sinclair, Question: What’s Wrong with Congress? Answer: It’s a Democratic Legislature, 89 B.U. L. Rev. 387, 393 (2009) (“Thus, special rules . . . that bar all amendments except those explicitly allowed by the . . . Rules Committee [i.e., limiting rules] have become routine.”).

120 Erica Rosenberg, Life Under the Republicans: The Subversion of Democracy in the House Resources Committee, 13 Hastings W.-Nw. J. Envtl. L. & Pol’y 233, 243–45 (2007); Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 2001–2006 and the Future of One-Party Rule, 23 J.L. & Pol. 233, 256–63 (2007).

121U.S. Const. art. I, § 2.

122 These data were provided by the Georgetown Law Library. All data are on file with the author.

123Id.

124Id.

125Id.

126See infra Appendix 2-A and note 337 (explaining that the Rules Committee also reported resolutions not bearing on the floor-amendment process, such as general debate rules and rules for consideration of conference reports).

127See infra Appendix 3-A and note 358 (explaining that the Rules Committee also reported resolutions not bearing on the floor-amendment process, such as general debate rules and rules for consideration of conference reports).

128 Special rules reported by the Rules Committee are not subject to amendment on the floor except in the rare case when the House defeats a motion to order the previous question on the rule. See supra note 60.

129E.g., infra Appendix 2-A, lines 4, 30, 80; Appendix 3-A, lines 13, 41, 64.

130E.g., infra Appendix 2-A, lines 101, 104; Appendix 3-A, line 78.

131See infra Appendices 2-B & 3-B. The demand for a recorded floor vote, whether on the motion to order the previous question or on final passage, provides only an imperfect indicator of the controversial character of a special rule. As indicated particularly in Appendix 3-B, the minority in the 110th Congress demanded recorded votes for the majority of all closed, effectively closed, limiting, and even open rules. Because special rules of any kind often waive points of order, a member may rationally vote against a special rule even if the member does not object to the special rule’s treatment of floor amendments. Bryan W. Marshall, Rules for War: Procedural Choice in the U.S. House of Representatives 5 (2005); see also Bach & Smith, supra note 101, at 105.

132See infra Appendix 2-B, lines 12, 13, 50, 66, 104, 116, 118, 132, 134; Appendix 3-B, lines 48, 104, 111, 171, 174.

133 This success rate reflects the general success that managers have on the floor with special rules, including limiting rules and open rules (although open rules are somewhat less likely to be challenged).

134 H.R. Res. 619, 109th Cong. (2005).

135 H.R. Res. 868, 109th Cong. (2006).

136 H.R. Res. 896, 109th Cong. (2006).

137 H.R. Res. 996, 109th Cong. (2006).

138 H.R. Res. 59, 109th Cong. (2005).

139 H.R. Res. 1002, 109th Cong. (2006).

140 H.R. Res. 1018, 109th Cong. § 1 (2006).

141Id. § 2.

142Id. § 3.

143 H.R. Res. 157, 110th Cong. § 1 (2007).

144 H.R. Res. 533, 110th Cong. § 1 (2007); H.R. Res. 387, 110th Cong. § 1 (2007).

145 H.R. Res. 601, 110th Cong. § 1 (2007); H.R. Res. 387, 110th Cong. § 2 (2007).

146 H.R. Res. 1285, 110th Cong. (2008).

147 H.R. Res. 95, 109th Cong. (2005).

148 H.R. Res. 182, 109th Cong. (2005); H.R. Res. 162, 109th Cong. (2005).

149 H.R. Res. 330, 109th Cong. (2005).

150 H.R. Res. 918, 109th Cong. (2006).

151 H.R. Res. 1038, 109th Cong. (2006).

152 H.R. Res. 317, 110th Cong. (2007); H.R. Res. 260, 110th Cong. (2007).

153 H.R. Res. 364, 110th Cong. (2007).

154 H.R. Res. 437, 110th Cong. (2007).

155 H.R. Res. 1277, 110th Cong. (2008).

156 H.R. Res. 1299, 110th Cong. (2008).

157 H.R. Res. 464, 110th Cong. (2007).

158 H.R. Res. 594, 110th Cong. (2007).

159 H.R. Res. 774, 110th Cong. (2007).

160 H.R. Res. 1014, 110th Cong. (2008).

161 H.R. Res. 982, 110th Cong. (2008).

162Robinson, supra note 50, at 44−45.

163 H.R. Res. 202, 109th Cong. (2005).

164 H.R. Res. 602, 109th Cong. (2005).

165 H.R. Res. 755, 109th Cong. (2006).

166 H.R. Res. 885, 109th Cong. (2006).

167 H.R. Res. 966, 109th Cong. (2006).

168 H.R. Res. 966, 109th Cong. (2006).

169 H.R. Res. 317, 110th Cong. (2007).

170 H.R. Res. 861, 110th Cong. (2007).

171 H.R. Res. 1102, 110th Cong. (2008).

172 H.R. Res. 1265, 110th Cong. (2008).

173 H.R. Res. 1297, 110th Cong. (2008).

174 H.R. Res. 1501, 110th Cong. (2008); H.R. Res. 1502, 110th Cong. (2008).

175 H.R. Res. 809, 110th Cong. (2007).

176 H.R. Res. 1001, 110th Cong. (2008).

177 H.R. Res. 211, 109th Cong. (2005).

178 H.R. Res. 379, 109th Cong. (2005).

179 H.R. Res. 481, 109th Cong. (2005).

180 H.R. Res. 842, 109th Cong. (2006).

181 H.R. Res. 835, 109th Cong. (2006).

182 H.R. Res. 508, 109th Cong. (2005).

183 H.R. Res. 579, 110th Cong. (2007).

184 H.R. Res. 1449, 110th Cong. (2008).

185 H.R. Res. 1476, 110th Cong. (2008).

186 H.R. Res. 1534, 110th Cong. (2008).

187 H.R. Res. 1212, 110th Cong. (2008); H.R. Res. 1433, 110th Cong. (2008); H.R. Res. 66, 110th Cong. (2007); H.R. Res. 615, 110th Cong. (2007).

188 In the 109th Congress, the following resolutions provided open rules for appropriations measures: H.R. Res. 151; H.R. Res. 287; H.R. Res. 291; H.R. Res. 298; H.R. Res. 303; H.R. Res. 314; H.R. Res. 315; H.R. Res. 337; H.R. Res. 341; H.R. Res. 342; H.R. Res. 725; H.R. Res. 818; H.R. Res. 821; H.R. Res. 830; H.R. Res. 832; H.R. Res. 836; H.R. Res. 851; H.R. Res. 865; H.R. Res. 877; and H.R. Res. 890. In the 110th Congress, the following resolutions provided open rules for appropriations measures: H.R. Res. 473; H.R. Res. 480; H.R. Res. 481; H.R. Res. 498; H.R. Res. 514; H.R. Res. 517; H.R. Res. 547; H.R. Res. 558; H.R. Res. 562; H.R. Res. 581; H.R. Res. 596; and H.R. Res. 1384.

189 House managers used the closed rule to exercise temporal agenda control again at the end of the first session of the 111th Congress. On the morning of December 16, 2009, the Rules Committee reported House Resolution 976, setting forth closed rules for four separate measures. H.R. Res. 976, 111th Cong. (2009). The resolution, which was approved by the floor the same day, allowed consideration of the four measures before Speaker Nancy Pelosi left Washington to participate in the final hours of an international meeting in Copenhagen regarding global warming. Tory Newmyer, House Dashes for the Finish; Leaders Aim to Exit Tonight, Roll Call, Dec. 16, 2009, at 1.

190 H.R. Res. 1092, 109th Cong. (2006); H.R. Res. 1100, 109th Cong. (2006); H.R. Res. 1105, 109th Cong. (2006).

191 Victor H. Fazio, It’s Really About ’08, Nancy, Wash. Post, Jan. 7, 2007, at B1; “100-Hour” Agenda Is Completed, Wash. Post, Jan. 20, 2007, at A6.

192Oleszek, supra note 24, at 128.

193 H.R. Res. 65, 110th Cong. (2007); H.R. Res. 66, 110th Cong. (2007).

194 H.R. 5, 110th Cong. (2007).

195 H.R. 6, 110th Cong. (2007).

196 H.R. 1, 110th Cong. (2007).

197 H.R. 2, 110th Cong. (2007).

198 H.R. 3, 110th Cong. (2007).

199 H.R. 4, 110th Cong. (2007).

200 H.R. Res. 5, 110th Cong. (2007); H.R. Res. 6, 110th Cong. (2007).

201 Gerald B.H. Solomon & Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 Harv. J. on Legis. 321, 355–58 (1994).

202 See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 29.

203Id.; supra note 15, at 171–72.

204See Appendix 3-A.

205See supra Table 3.

206See supra Table 4.

207See, e.g., H.R. 3770, 109th Cong. (2006) (recorded vote number 576).

208 H.R. Con. Res. 294, 109th Cong. (2005) (recorded vote number 647).

209 H.R. Res. 15, 110th Cong. (2007) (recorded vote number 21).

210 H.R. Res. 39, 110th Cong. (2007) (recorded vote number 25).

211See, e.g., Solomon & Wolfensberger, supra note 201, at 356 (“It seems that the most important and controversial bills are the most likely to be considered under highly restrictive rules.”).

212See, e.g., Smith, supra note 30, at 44–45 (describing the Republican minority’s protest against closed and other restrictive rules); Solomon & Wolfensberger, supra note 201, at 355–58 (noting that Republicans generally believed there were too many limitations on floor amendments in 1993).

213See Smith, supra note 30, at 12, 169 (explaining that “gathering systematic data on members’ policy preferences over many issues and years is not possible” and that “even if such a complex analysis were feasible, its conclusions still could be quite misleading”).

214See Appendices 2-A & 3-A.

215 Author’s calculations from amendment records provided by the Rules Committee.

216 Interestingly, bipartisan amendments fared much better in both Congresses: in the 109th Congress, just over 50% of amendments with bipartisan sponsorship were allowed by limiting rules; in the 110th Congress, about 56% of such amendments were allowed.

217See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 171–72.

218Supra note 18.

219See Appendices 2-B & 3-B.

220See Sinclair, Unorthodox Lawmaking, supra note 15, at 270.

221 Two methodological notes should be made at the outset. First, the three theories discussed are grounded in detailed formal models and rigorous empirical testing, and there is no pretense here of that type of modeling and testing or, for that matter, of refuting any of the three theories. Rather, the objective here is to offer qualifications on how the theories explain the closed rule and to suggest a different explanation that takes account of the points made in Part II. Second, the three theories and the broader explanation developed in this Article arguably ignore the important point that internal legislative rules and structures, determined as they are by institutional decision processes, may reflect the same pathologies of preference aggregation that plague legislation generally. For example, it may be that the current use of the closed rule reveals not a rational preference by a majority of the House membership but successful agenda manipulation by House managers. This Article brackets that concern and, rightly or wrongly, follows the lead of political theory in treating House rules and structures as reflecting, more or less, the aggregated preferences of the House membership.

222 The theories normally refer to “restrictive rules,” the term often used by political scientists to describe any rule that is neither open nor modified open. See supra note 73. The term “restrictive rules” maps onto what this Article calls “closed rules,” “effectively closed rules,” and “limiting rules.” As such, these theories’ explanations of restrictive rules apply, a fortiori, to closed and effectively closed rules.

223See Shepsle & Weingast, Positive Theories, supra note 89, at 22–23.

224 C. Lawrence Evans, Legislative Structure: Rules, Precedents, and Jurisdictions, 24 Leg. Stud. Q. 605, 608–09 (1999).

225 Shepsle & Weingast, Positive Theories, supra note 89, at 12–13.

226 Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; Or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. Pol. Econ. 132, 143–48 (1988); see also Krehbiel, Spatial Models, supra note 91, at 43–44 and 160–64.

227 David P. Baron, A Noncooperative Theory of Legislative Coalitions, 33 Am. J. Pol. Sci. 1048 (1989) [hereinafter Baron, Noncooperative Theory]; Krehbiel, Spatial Models, supra note 91, at 43–44, 160–64. Distributive theory has also advanced the position that closed rules are more likely to lead to greater inefficiency in distributive legislation; that position, however, is grounded in the counter-intuitive proposition that legislators take into account both the benefits and the costs of distributive legislation. David P. Baron, Majoritarian Incentives, Pork Barrel Programs, and Procedural Control, 35 Am. J. Pol. Sci., 57 (1991) [hereinafter Baron, Majoritarian Incentives]. For a suggestion that distributive theory’s implications for the closed rule may be ambiguous, see Barbara Sinclair, House Special Rules and the Institutional Design Controversy, 19 Leg. Stud. Q. 477, 481 (1994) [hereinafter Sinclair, House Special Rules].

228 Barry R. Weingast, Fighting Fire with Fire: Amending Activity and Institutional Change in the Postreform Congress, in The Postreform Congress 142, 161 (Roger H. Davidson ed., 1992) [hereinafter Weingast, Fighting Fire].

229See, e.g., Krehbiel, Information, supra note 47, at 247–48.

230 Those reasons may or may not justify tagging the account as “[a]t best . . . a chronic hope.” Keith Krehbiel, Restrictive Rules Reconsidered, 41 Am. J. Pol. Sci. 919, 940 (1997) [hereinafter Krehbiel, Restrictive Rules].

231Krehbiel, Information, supra note 47, at 173–86; Krehbiel, Restrictive Rules, supra note 230, at 932–40; Bryan W. Marshall, Explaining the Role of Restrictive Rules in the Postreform House, 27 Legis. Stud. Q. 61, 67–78 (2002); Sinclair, House Special Rules, supra note 227, at 484–85.

232 This theory is set forth throughout Krehbiel, Information, supra note 47; see also Thomas W. Gilligan & Keith Krehbiel, Organization of Informative Committees by a Rational Legislature, 34 Am. J. Pol. Sci. 531 (1990).

233Krehbiel, Information, supra note 47, at 15–20.

234Id. at 66–81; see also Shepsle & Weingast, Positive Theories, supra note 89, at 15–16.

235Krehbiel, Information, supra note 47, at 90–92, 97–98; see also Thomas W. Gilligan & Keith Krehbiel, Asymmetric Information and Legislative Rules with a Heterogeneous Committee, 33 Am. J. Pol. Sci. 459 (1989); Thomas W. Gilligan & Keith Krehbiel, Collective Decisionmaking and Standing Committees: An Informational Rationale for Restrictive Amendment Procedures, 3 J.L. Econ. & Org. 287 (1987) [hereinafter Gilligan & Krehbiel, Collective Decisionmaking].

236 Krehbiel, Spatial Models, supra note 91, at 305.

237Krehbiel, Information, supra note 47, at 191.

238 For example, informational theory counterfactually assumes that the floor decides between a closed rule and an open rule before a committee reports a measure. Gilligan & Krehbiel, Collective Decisionmaking, supra note 235, at 300. For additional criticism of the formal model, see David P. Baron, Legislative Organization with Informational Committees, 44 Am. J. Pol. Sci. 485 (2000); Krishna & Morgan, supra note 118; Shepsle & Weingast, Positive Theories, supra note 89, at 24–25. For criticism of the empirical support, see Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. Pol. 25, 35–41 (1996); Marshall, supra note 231, at 67–78; Sinclair, House Special Rules, supra note 227, at 484–85. For counterarguments on the empirical point, see Krehbiel, Restrictive Rules, supra note 230. For the original empirical results supporting the theory’s explanation of the closed rule, see Krehbiel, Information, supra note 47, at 173–91.

239 Gilligan & Krehbiel, Collective Decisionmaking, supra note 235, at 328; Shepsle & Weingast, Positive Theories, supra note 89, at 25–26.

240Krehbiel, Information, supra note 47, at 167–68.

241Bach & Smith, supra note 101, at 51. The remaining special rules did not address floor amendments. Id.

242 Mapping Krehbiel’s distinction between open and restrictive rules onto the terms used in this Article, the original empirical tests would be said to have separated “open rules” (as used in this Article) from all “closed,” “effectively closed,” and “limiting” rules (as used in this Article). Other studies on the closed rule present the same methodological issue. See, e.g., Marshall, supra note 231, at 80; Sinclair, House Special Rules, supra note 227, at 478.

243 For example, would new testing confirm that, as implied by informational theory, Krehbiel, Information, supra note 47, at 165, the committees of jurisdiction in the 109th and 110th Congresses were significantly more specialized and heterogeneous than were the committees of jurisdiction in the 98th and 99th Congresses?

244See Part II.B, supra.

245 Evans, supra note 224, at 609.

246Cox & McCubbins, Setting the Agenda, supra note 9, at 17–18; see also Gary W. Cox & Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (2d ed. 2007) [hereinafter Cox & McCubbins, Legislative Leviathan]. A different version of partisan theory, conditional party government (which argues that party control in the legislature is contingent and generally increases as both the parties become more homogeneous and the party medians become more distant), has slightly different implications for the closed rule. See generally Finocchiaro & Rohde, supra note 83 (explaining implications of conditional-party-government thesis for closed rule).

247Cox & McCubbins, Legislative Leviathan, supra note 246, at 99–125; Cox & McCubbins, Setting the Agenda, supra note 9, at 19, 23; Shepsle & Weingast, Positive Theories, supra note 89, at 18.

248Cox & McCubbins, Setting the Agenda, supra note 9, at 6.

249Id. at 9, 19–20, 24.

250Id. at 125, 146.

251 Sinclair, House Special Rules, supra note 227, at 483.

252Krehbiel, Information, supra note 47, at 167.

253Cox & McCubbins, Setting the Agenda, supra note 9, at 126. For related arguments that the closed rule is used by the majority party for its own advantage, see Bach & Smith, supra note 101, at 5; Marshall, supra note 131, at 25–45, 61–85; David W. Rohde, Parties and Leaders in the Postreform House 102–03, 109 (1991); Sinclair, Unorthodox Lawmaking, supra note 15, at 30, 42, 280. Certainly members of the minority party have long understood the disempowering effect that the closed rule has on them, and they regularly complain that the closed rule effectively locks them out of the legislative process. See supra notes 12–18.

254 Keith Krehbiel, Rejoinder to ‘Sense and Sensibility, 41 Am. J. Pol. Sci. 958, 958 (1997).

255 For evidence supporting this explanation, see Cox & McCubbins, Setting the Agenda, supra note 9, Finocchiaro & Rohde, supra note 83, at 44–55; Sinclair, House Special Rules, supra note 227, at 485–86; Douglas Dion & John D. Huber, Sense and Sensibility: The Role of Rules, 41 J. Pol. Sci. 945, 946–56 (1997); and Dion & Huber, supra note 238, at 35–41. (Although Dion and Huber do not specifically tag their model as fitting within partisan theory, it is rightly regarded as such. See Evans, supra note 224, at 628.) For evidence against partisan theory’s explanation of the closed rule, see Krehbiel, Restrictive Rules, supra note 230, at 932–36.

256Bach & Smith, supra note 101, at 69; see also Evans, supra note 224, at 627; Weingast, Fighting Fire, supra note 228, at 143.

257Bach & Smith, supra note 101, at 5, 70–71, 112; see also Evans, supra note 224, at 627. For their argument about the non-exclusivity of partisan motivations, see Bach & Smith, supra note 101, at 69, 82.

258 Sinclair, House Special Rules, supra note 227, at 482–83.

259See Sinclair, Legislators, supra note 30, at 13 (“In a preorganizational legislative ‘state of nature,’ the membership as a whole possess all decision-making authority.”). Section 5 of Article I simply states that the House (like the Senate) “may determine the Rules of its Proceedings.” U.S. Const. art. I, § 5. Thus, the constitutional starting point is that the House has the power to determine how it will exercise its share of the legislative authority granted under Article I. Consistent with this, the full membership of the House votes on the standing rules at the beginning of each Congress, with each member casting one vote equally weighted with that of every other member.

260 U.S. Const. art. I, § 5.

261 Even groups nominally committed to radical egalitarianism eventually figure that point out. See, e.g., Geoffrey Hosking, The First Socialist Society: A History of the Soviet Union from Within 39 (1992) (describing centralization of authority within 1917 Petrograd Soviet); Murray Morgan, Skid Road: An Informal Portrait of Seattle 201 (1982) (describing centralization of authority within Seattle labor unions’ 1919 general strike committee).

262Sinclair, Unorthodox Lawmaking, supra note 15, at 122–24.

263Smith, supra note 30, at 31; Weingast, Floor Behavior, supra note 95, at 797–98.

264Smith, supra note 30, at 24–28. Reformers associated the closed rule, which was used sparingly, with the excessive power of committee chairs (most notably, the chair of the Ways and Means Committee), and the Democratic caucus in 1973 put sharp restrictions on the use of the closed rule. Rules Committee History, supra note 11, at 216.

265Sinclair, Legislators, supra note 30, at 48; Smith, supra note 30, at 28–35.

266Bach & Smith, supra note 101, at 30–31; Sinclair, Legislators, supra note 30, at 77; Smith, supra note 30, at 35–40.

267Bach & Smith, supra note 101, at 31, 33; Sinclair, Legislators, supra note 30, at 78; Smith, supra note 30, at 40–45.

268Bach & Smith, supra note 101, at 50–74.

269Smith, supra note 30, at 74–83.

270Sinclair, Unorthodox Lawmaking, supra note 15, at 25–35.

271Oleszek, supra note 24, at 90–93; Kenneth A. Shepsle, Congress Is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239, 245–56 (1992).

272Oleszek, supra note 24, at 81–90.

273Smith, supra note 30, at 188–95. Even so, the committees may not have sufficient power to roll the floor median. See Krehbiel, Spatial Models, supra note 91, at 280–81. Also as one game-theoretic analysis argues, because the House votes on the special rule after the committee proposes a measure, “the outcome that would occur under the open rule acts as a constraint on the degree to which the committee can bias the [measure] toward its preferred outcome.” Jeffrey S. Banks, Committee Proposals and Special Rules, 96 Proc. Nat’l Acad. Sci. 8295 (1999). Taking a different approach, Jacob Gersen and Eric Posner argue that “delay rules” (such as multiple-reading requirements) can be understood in part as weakening the agenda control otherwise exercised by committee chairs; their point is that delay rules allow the rank and file to review the work of committees and organize floor opposition. Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543, 568–69 (2007). But “delay rules” (as well as many of the other legislative rules that Gersen and Posner describe) are routinely waived by special rules. Although Gersen and Posner acknowledge the possibility that Congress might waive its own timing rules, they argue (apparently without having examined legislative practice) that waiver is unlikely because it “can be costly in terms of reputation.” Id. at 556. That simply mischaracterizes the practice in the contemporary House.

274See Part II.C.2.

275Bach & Smith, supra note 101, at 70–71.

276 Arguably, the minority is better off under a closed rule than the majority rank and file. Even though a closed rule blocks all floor amendments, the minority may offer a motion to recommit the underlying measure with instructions. See supra note 71.

277See, e.g., Rohde, supra note 253, at 112–13.

278 Krehbiel, Restrictive Rules, supra note 230, at 942.

279 Other explanations are possible as well, of course. It may be that managers have significant institutional strength and that individual members are hesitant to challenge them when voting on closed rules. See, e.g., Sinclair, Legislators, supra note 30, at 136–37, 156. Another possibility is that managers shrewdly calculate exactly how much agenda control they can exercise without suffering a reversal on the floor and then calibrate their decisions to use the closed rule accordingly. See, e.g., id. Yet another possibility is that managers effectively make procedural votes a point of party discipline—a possibility that is more likely to the extent that votes on procedure have lower salience for constituents than do votes on underlying measures. Arnold, supra note 9, at 121, 272; Cox & McCubbins, Setting the Agenda, supra note 9, at 29. But those explanations simply move the relevant question one step back: as a majoritarian institution, the full House always has the authority to curb its managers, and it rationally would do so if that were advantageous.

280Gerald S. Strom, The Logic of Lawmaking: A Spatial Theory Approach 83–85 (1990). Mackie makes the same point in his argument that Riker overstated the importance and incidence of agenda control in Congress. Mackie, supra note 117, at 166–68.

281 David P. Baron & John A. Ferejohn, Bargaining in Legislatures, 83 Am. Pol. Sci. Rev. 1181, 1198–1200 (1989) (discussing reasons the legislature might choose to adopt an open or closed rule).

282Cf. Kenneth A. Shepsle, Institutional Equilibrium and Equilibrium Institutions, in Political Science: The Science of Politics 51, 72–73 (Herbert F. Weisberg ed., 1986) (“[N]ot knowing how conflicts will shape up, now or in the future, [political agents] develop mechanisms which enable positive collective action, on the one hand, but which possess aspects of insurance against reneging, opportunism, and other adverse circumstances, on the other hand.”).

283 This point should not be misconstrued. The claims made in this Article are fundamentally agnostic about the formation of managerial policy preferences. That is, the claims here do not turn on whether managers come to a measure with strong policy preferences of their own rather than with the intent of simply aggregating the policy preferences of the rank and file. The important point is that the agency relationships in the House commit substantial discretion to managers and allow them to exercise outsized influence over what policy positions are passed by the House. Even if managers see their job as simply aggregating the rank and file’s preferences into a legislative product, the agenda-setting power allows the managers to determine how the rank and file’s preferences will be aggregated and enables the managers to ensure that the aggregated preferences (as determined by the managers) will have substantial advantages on the floor. That claim is distinct from any claim that the managers necessarily privilege their own policy preferences over the policy preferences of the rank and file. Stated differently, one can posit three sets of preferences: (1) the aggregate policy preferences of the rank and file, as determined by unmanaged floor voting; (2) the aggregate policy preferences of the rank and file, as determined by managers; and (3) the policy preferences of managers. Existing agency relationships and institutional structures preclude the preferences in (1) from controlling floor outcomes. The claim made here is that the agency relationships—as strengthened by the closed rule—strongly privilege the preferences in (2). Ultimately, the argument is indifferent as to whether the preferences in (2) do or do not coincide with the preferences in (3) in all or even very many cases.

284See generally David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction (1997).

285 For examples involving tax and public welfare policy, see Nancy Staudt, Redundant Tax and Spending Programs, 100 Nw. U. L. Rev. 1197, 1204–08 (2006) (detailing how different congressional committees create conflicting programs aimed at alleviating poverty) and David A. Weisbach, Tax Expenditures, Principal–Agent Problems, and Redundancy, 84 Wash U. L. Rev. 1823, 1830–36 (2006) (providing examples of redundancy in tax and spending programs).

286See Weisbach, supra note 285, at 1843–49 (discussing benefits of redundancy).

287 Weingast, Fighting Fire, supra note 228, at 162.

288 Staudt, supra note 285, at 1197–99.

289 7 U.S.C. §§ 2011–2036 (2006).

290 42 U.S.C. §§ 1396–1396v (2006).

291 26 U.S.C. § 32 (2006).

292Standing Rules, supra note 22, r. X. The Appropriations and Budget Committees also have jurisdiction (although less directly). Id. For a political-economy argument that committee jurisdiction entrenches legislative redundancy, see Staudt, supra note 285, at 1214–22.

293See, e.g., 20 U.S.C. §§ 1070a to 1070a-1 (2006) (Federal Pell Grant program).

294See, e.g., 26 U.S.C. § 25A (2006) (tax credit for certain education expenses); id. § 127 (tax exclusion for certain employer-provided education assistance); id. § 221 (tax deduction for interest on certain education loans). Congress recently took a small step toward addressing the fragmentation of federal education policy. Section 1004(f)(1)(A) of the American Recovery and Reinvestment Act of 2009 requires the Secretary of the Treasury and the Secretary of Education to “study how to coordinate the credit allowed under section 25A of the Internal Revenue Code of 1986 with the Federal Pell Grant program under section 401 of the Higher Education Act of 1965 to maximize their effectiveness at promoting college affordability.” Pub. L. No. 111-5, § 1004(f)(1)(A), 123 Stat. 115, 315 (2009).

295Standing Rules, supra note 22, r. X. Again, both the Appropriations and Budget Committees also have jurisdiction. Id.

296 Consider the following example of the benefits to legislators. When asked about his aggressive efforts to raise campaign contributions from businesses regulated by his committee, Representative Barney Frank, the chair of the Financial Services Committee, flatly replied: “Financial services companies are inclined to give to me because I’m chairman of the committee important to their interests.” Jeffrey H. Birnbaum & John Solomon, Democrats Offer Up Chairmen for Donors; Party’s Campaigns Had Faulted GOP for “Selling Access,Wash. Post, Feb. 24, 2007, at A1. Obviously, fragmentation increases the number of committee chairs who can seek contributions from the same interest groups.

297 Positive political theory supports this point. See Arthur T. Denzau & Robert J. MacKay, Gatekeeping and Monopoly Power of Committees: An Analysis of Sincere and Sophisticated Voting Behavior, 27 Am. J. Pol. Sci. 740 (1983); see also Krehbiel, Spatial Models, supra note 91, at 306; Krishna & Morgan, supra note 118, at 436; Weingast, Fighting Fire, supra note 228, at 161.

298Oleszek, supra note 24, at 125–35.

299 H.R. Res. 903, 111th Cong. (2009).

300See, e.g., Sinclair, Unorthodox Lawmaking, supra note 15, at 21 (describing leadership modification following multiple referral).

301 Although, in this example, the chair of the Agriculture Committee might bring the policy duplication or discontinuity to the attention of the Rules Committee by submitting a perfecting amendment to the Ways and Means measure when that measure is under review, the chair of the Agriculture Committee may rationally determine that her long-term interests are better served by allowing the Ways and Means Committee to do as it pleases so that the Ways and Means Committee will not interfere with her own exercise of jurisdiction in the future.

302See, e.g., Denzau & MacKay, supra note 297, at 759 (“Under the closed rule, . . . more sophisticated committee behavior, based on compromise and a careful crafting of committee bills, is shown to move legislative outcomes closer to the committee’s preferred outcome.”).

303Kay Lehman Schlozman & John T. Tierney, Organized Interests and American Democracy 297–300 (1986).

304Id. at 297.

305Id. at 290–94; Sinclair, Legislators, supra note 30, at 236.

306 Baron, Noncooperative Theory, supra note 227, at 1082.

307See, e.g., Douglas G. Baird et al., Game Theory and the Law 172–74 (1994); Michael Taylor, The Possibility of Cooperation 66–67 (1987).

308 For example, as political interest in healthcare reform grew in recent years, “hospitals, insurers, and other medical interest groups hoping to shape the legislation to their advantage” made substantial campaign contributions to the Democratic chair of the Senate Finance Committee. Dan Eggen, Industry Cash Flowed to Drafters of Reform; Key Senator Baucus Is a Leading Recipient, Wash. Post, July 21, 2009, at A1.

309 That said, interest groups and Executive Branch agents can still enjoy legislative success under open rules without the need to capture a majority on the floor to the extent that legislators themselves enter into vote-trading arrangements. In other words, the closed rule does not provide a necessary condition for legislative capture.

310See, e.g., J. Mark Ramseyer & Minoru Nakazato, Tax Transitions and the Protection Racket: A Reply to Professors Graetz and Kaplow, 75 Va. L. Rev. 1155 (1989) (arguing that legislators use tax-reform proposals to extract rents from interest groups).

311See Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 21–33 (1991) (describing the economic theory of legislation).

312See Denzau & Mackay, supra note 297; Guillaume R. Frechette, et al., Bargaining in Legislatures: An Experimental Investigation of Open Versus Closed Amendment Rules, 97 Am. Pol. Sci. Rev. 221, 230 (2003); Krehbiel, Spatial Models, supra note 91, at 296. Relatedly, political theory argues that distributive legislation will be more inefficient under the closed rule than under the open rule. See generally Baron, Noncooperative Theory, supra note 227; Baron, Majoritarian Incentives, supra note 227.

313 The closed rule may also strengthen the position of the Legislative Branch as a whole relative to the Executive Branch. As argued in Part III.A.2 and Part III.C, the post-reform House leans more toward disorder when it uses the closed rule sparingly, thereby increasing the difficulty for Congress to assert its power vis a vis the Executive. To the extent that the closed rule enhances the inter-branch status and strength of Congress, the Executive Branch might suffer a net loss from the closed rule. However, if agents of the Executive Branch are nonetheless able to capture committee chairs and other managers on a case-by-case basis, any effects the closed rule has in strengthening Congress would only increase the payoff to those agents.

314See, e.g., Joel Achenbach, Bipartisan? Ha. Congress Creates a Desert Aisle; Left-Right Divide Is Now a “Hyperpartisan” Chasm, Wash. Post, Sept. 5, 2009, at C1.

315Rohde, supra note 253, at 14–15.

316See, e.g., Oleszek, supra note 24, at 132; Smith, supra note 30, at 44–45; Solomon & Wolfensberger, supra note 201, at 321–22, 349; Tiefer, supra note 120, at 259, 261; see also supra notes 12–18.

317See supra Part III.A.

318See, e.g., Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1300, 1304 (2001) (arguing that non-open rules preclude public deliberation).

319 Shepsle, supra note 91, at 35–37.

320Riker, supra note 83, at 192; see also id. at 137–39, 169–95, 200, 237.

321 Indeed, Mackie, one of Riker’s most prominent critics, does not even attempt to reconcile the closed rule to democratic ideals. Rather, Mackie argues that Riker overstated the incidence of agenda control in Congress and brushes aside the closed rule on the erroneous assumption that it is “seldom invoked.” Mackie, supra note 117, at 169–71.

322Sinclair, Legislators, supra note 30, at 17.

323See supra Part I.C (discussion of Arrow’s Theorem and McKelvey’s Theorem).

324Sinclair, Legislators, supra note 30, at 143.

325Cox & McCubbins, Setting the Agenda, supra note 9, at 9, 17–18, 24; Oleszek, supra note 24, at 24; Sinclair, Legislators, supra note 30, at 9; see also Fiorina & Shepsle, supra note 30, at 37.

326 Shepsle & Weingast, supra note 95, at 514; Shepsle, supra note 91, at 54–55.

327Cf. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1, 40 (2000) (arguing that courts, in following the numerus clausus principle, aim to optimize standardization in forms of property ownership).

328See supra Part II.A.

329Sinclair, Unorthodox Lawmaking, supra note 15, at 29.

330Id.; Oleszek, supra note 24, at 128.

331Sinclair, Unorthodox Lawmaking, supra note 15, at 280.

332Arnold, supra note 9, at 121–22; Sinclair, Legislators, supra note 30, at 10; Garrett & Vermeule, supra note 318, at 1287–90; see also John W. Kingdon, Models of Legislative Voting, 39 J. Pol. 563 (1977).

333 This proposition, of course, ignores the more fundamental problems of determining policy preferences of a representative’s constituents and of reconciling inconsistent preferences among those constituents. See, e.g., Fiorina & Shepsle, supra note 30, at 21.

334Cf. Sinclair, Unorthodox Lawmaking, supra note 15, at 284.

335Cf. Oleszek, supra note 24, at 132; Sinclair, Unorthodox Lawmaking, supra note 15, at 279.

336 H.R. Res. 587, 111th Cong. (2009) (enacted).

337 This designation generally includes resolutions that provide the terms of floor debate, waive standing rules, make in order motions to suspend the rules, or provide for consideration of a conference report. It does not, however, include resolutions that provide for consideration of Senate measures or Senate amendments to House measures; because those resolutions sometimes allow floor amendments, they are included among the resolutions designated as closed, effectively closed, limiting, or open rules. Cf. Krehbiel, Information, supra note 47, at 166 (excluding such resolutions from consideration).

338 The Rules Committee makes available summaries of amendments submitted for some, but not all, measures.

339 House Resolutions 140 and 144 set forth rules for a single underlying measure; together, they allow 22 of the 34 amendments submitted to the Rules Committee for that measure. See H.R. Res. 140, 109th Cong. (2005); H.R. Res. 144, 109th Cong. (2005).

340 House Resolutions 140 and 144 set forth rules for a single underlying measure; together, they allow 22 of the 34 amendments submitted to the Rules Committee for that measure. See H.R. Res. 140; H.R. Res. 144.

341 House Resolution 241 is a self-executing rule providing that, upon its adoption, House Resolution 240 is itself adopted. H.R. Res. 241, 109th Cong. (2005). House Resolution 241 is counted as a closed rule because it does not permit any floor amendment to House Resolution 240. Id.

342 House Resolution 351 provides closed rules for four separate measures. See H.R. Res. 351, 109th Cong. (2005).

343 The Rules Committee reported two separate resolutions numbered 558 for two separate measures. The resolution referenced here sets forth a closed rule for H.R.J. Res. 72, 109th Cong. (2005), a continuing resolution for fiscal year 2006.

344 The Rules Committee reported two separate resolutions numbered 558 for two separate measures. The resolution referenced here sets forth a limiting rule for H.R. 1065, 109th Cong. (2005), the United States Boxing Commission Act.

345 House Resolutions 610 and 621 set forth rules for a single underlying measure; together, they allow 36 of the 131 amendments submitted to the Rules Committee for that measure. See H.R. Res. 610, 109th Cong. (2005); H.R. Res. 621, 109th Cong. (2005).

346 House Resolutions 610 and 621 set forth rules for a single underlying measure; together, they allow 36 of the 131 amendments submitted to the Rules Committee for that measure. See H.R. Res. 610, 109th Cong. (2005); H.R. Res. 621, 109th Cong. (2005).

347 House Resolutions 741 and 742 set forth rules for a single underlying measure; together, they allow 23 of the 103 amendments submitted to the Rules Committee for that measure. See H.R. Res. 741, 109th Cong. (2006); H.R. Res. 742, 109th Cong. (2006).

348 House Resolutions 741 and 742 set forth rules for a single underlying measure; together, they allow 23 of the 103 amendments submitted to the Rules Committee for that measure. See H.R. Res. 741, 109th Cong. (2006); H.R. Res. 742, 109th Cong. (2006).

349 House Resolutions 806 and 811 set forth rules for a single underlying measure; together, they allow 31 of the 55 amendments submitted to the Rules Committee for that measure. See H.R. Res. 806, 109th Cong. (2006); H.R. Res. 811, 109th Cong. (2006).

350 House Resolutions 806 and 811 set forth rules for a single underlying measure; together, they allow 31 of the 55 amendments submitted to the Rules Committee for that measure. See H.R. Res. 806, 109th Cong. (2006); H.R. Res. 811, 109th Cong. (2006).

351 The Rules Committee reported two separate resolutions numbered 862 for two separate measures. The resolution referenced here waives a procedural rule in the standing rules. See H.R. Res. 862, 109th Cong. (2006).

352 The Rules Committee reported two separate resolutions numbered 862 for two separate measures. The resolution referenced here provides for consideration of a conference report. Id.

353 House Resolution 966 provides closed rules for two separate measures. See H.R. Res. 966, 109th Cong. (2006).

354 House Resolution 1003 is a self-executing rule providing that, upon its adoption, House Resolution 1000 is itself adopted. H.R. Res. 1003, 109th Cong. (2006). House Resolution 1003 is counted as a closed rule because it does not permit any floor amendment to House Resolution 1000. Id.

355 House Resolution 1018 provides closed rules for three separate measures. See H.R. Res. 1018, 109th Cong. (2006).

356 House Resolution 1054 provides closed rules for two separate measures. See H.R. Res. 1054, 109th Cong. (2006).

357 A resolution is designated as “yes” if there was a recorded vote either on the motion to order the previous question or on passage of the resolution.

358 This designation generally includes resolutions that provide the terms of floor debate, waive standing rules, make in order motions to suspend the rules, or provide for consideration of a conference report. It does not, however, include resolutions that provide for consideration of Senate measures or Senate amendments to House measures; because those resolutions sometimes allow floor amendments, they are included among the resolutions designated as closed, effectively closed, limiting, or open rules. Cf. Krehbiel, Information, supra note 47, at 166 (excluding such resolutions from consideration).

359 The Rules Committee makes available summaries of amendments submitted for some, but not all, measures.

360 House Resolution 317 provides closed rules for two separate measures. See H.R. Res. 317, 110th Cong. (2007).

361 House Resolution 387 provides closed rules for three separate measures. See H.R. Res. 387, 110th Cong. (2007).

362 House Resolution 437 provides a closed rule for one measure and a limiting rule for a separate measure. See H.R. Res. 437, 110th Cong. (2007).

363 House Resolutions 581 and 599 set forth separate rules for a single underlying measure. See H.R. Res. 581, 110th Cong. (2007); H.R. Res. 599, 110th Cong. (2007).

364 House Resolutions 581 and 599 set forth separate rules for a single underlying measure. See H.R. Res. 581, 110th Cong. (2007); H.R. Res. 599, 110th Cong. (2007).

365 House Resolution 615 provides a limiting rule for one measure and a closed rule for a separate measure. See H.R. Res. 615, 110th Cong. (2007).

366 House Resolution 893 provides closed rules for two separate measures. See H.R. Res. 893, 110th Cong. (2007).

367 House Resolution 982 is a self-executing rule providing that, upon its adoption, House Resolutions 979 and 980 are adopted. H.R. Res. 982, 110th Cong. (2008). House Resolution 982 is counted as two closed rules because it does not permit a separate vote on any floor amendments to House Resolution 979 or House Resolution 980. Id.

368 House Resolution 1031 is a self-executing rule providing that, upon its adoption, House Resolution 895 is itself adopted. H.R. Res. 1031, 110th Cong. (2008). House Resolution 1031 is counted as a closed rule because it does not permit a separate vote on any floor amendments to House Resolution 895. Id.

369 House Resolution 1516 provides closed rules for two separate measures. See H.R. Res. 1516, 110th Cong. (2008).

370 A resolution is designated as “yes” if there was a recorded vote either on the motion to order the previous question or on passage of the resolution.